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THE LIFE 



OF 



HORACE BINNE^ 



WITH SELECTIONS FROM HIS LETTERS 



BY 

CHARLES CHAUNCEY BINNEY 



PHILADELPHIA AND LONDON 

J. B. LIPPINCOTT COMPANY 

1903 



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£34-* 



Copyright, 1903 
By Charles Chauncey Binney 

Published November, igoj 






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Printed by J. B. Lippincott Company, Philadelphia, U. S. A. 






PREFACE 

¥¥ 

IT may have caused some surprise that no complete memoir 
of Horace Binney was published shortly after his death, 
and before so many of those to whom such a book would 
have had a special interest, on account of their personal ac- 
quaintance with him, had themselves passed away. One cause 
of the delay was undoubtedly his own aversion to the idea of 
becoming the subject of a biography, coupled with the further 
fact that, owing to his fixed habit of destroying, from time 
to time, all the letters which he received, the material for a 
complete memoir was not in possession of his descendants at 
his death. Had his oldest son survived him, this lack could, 
and probably would, have been made up for by personal 
knowledge, but it was not known until a few years ago that 
many of Mr. Binney 's letters had been preserved by the 
families of those who had received them. This discovery 
made it possible to prepare a fairly connected account of his 
whole life, but, owing to lapse of time, it has been left to 
one whose personal knowledge is only a memory of boyhood 
to attempt what could have been much better done by those 
of a generation ago. 

In spite of this long delay, it is believed that even now 
a record of Mr. Binney's life and opinions may prove inter- 
esting not merely to lawyers, or even to Philadelphians, but 
to all Americans who believe in high ideals of character and 
citizenship. Apart from his eminence as a lawyer, he un- 
doubtedly held for the last fifty years of his life (from 1825 
to 1875) an exceptionally high place in public esteem, and 



PREFACE 

wielded a remarkable influence. Though in public office for 
only a very short time, he was, in a very real sense, a public 
man, a recognized leader in his community. A keen observer 
of public affairs, and personally acquainted with many promi- 
nent men, his long life enabled him to understand, more 
clearly than younger men could do, the conditions which led 
up to the events of the Civil War period, the period when 
most of the letters in this volume were written. 

The work of preparing the present volume has been 
mainly that of selection and compilation, in the hope of pre- 
senting, as far as possible, an autobiography. Fortunately 
a partial autobiography existed, written for Mr. Binney's 
children, and from this all the quoted extracts are taken, 
other than those which are specifically referred to as taken 
from speeches, letters, his European journal, or other 
writings. In making selections from the available material, 
references to strictly private and family matters have gen- 
erally been excluded, except in the earlier chapters, where 
they were inseparately connected with the gradual develop- 
ment of his character. It is almost wholly as a lawyer and a 
citizen that he is shown here. Of his family life it is fitting 
to say that it was that of a wise, affectionate, and conscien- 
tious man, possessing a very decided character, but remark- 
ably free from eccentricities. To describe it would be to 
admit the public into confidences to which he would under 
no consideration have admitted them himself. 

In referring to Mr. Binney's opinions upon political and 
social matters, the effort has been to state them in his own 
words as far as possible, without undertaking either tc 
champion them or to explain them away. If he was slow 
to change his views, he was at least not hasty in forming 
them, and while some of them may not command genera 
assent, they were always such as no man need be ashamec 



PREFACE 

to hold. He loved his country, and wished to see its govern- 
ment the best that human intelligence and virtue could pro- 
duce. That his ideals were not attained, and apparently 
never would be, was to him a constant source of regret, but 
he never made it an excuse for any failure to perform the 
full measure of his duty as a citizen. 

The problems which now confront the American people 
are some of them the same as those of Mr. Binney's time 
(many parts of his anti-protection memorial of 1824, for 
instance, might have been written to-day), while others are 
due to developments then scarcely contemplated; but in the 
case of all it is probable that the best solutions will be found 
to be those which accord with the fundamental principles 
upon which the government of this country was originally 
based. Those principles are perhaps more closely studied 
to-day, even by men who differ widely in the application of 
them, than at any time since the Civil War. To see how 
those principles shaped themselves in the mind of a man born 
while the cause of American Independence was still trem- 
bling in the balance may, therefore, be a matter of more than 
trivial interest; and if anything contained in this memoir 
prove an aid to the proper carrying out of those principles, 
or an incentive to their further study, its publication will 
have been amply justified. 

Philadelphia, July, 1903. 



Vll 



id 



CONTENTS 
he. ¥¥ 

full mf. 

The pro CHAPTER I 

f,l PAGE 

. ».*» and childhood (1780-1793) .jt.: 1 

CHAPTER II 

Life at College and as a Law Student (1793-1800) 22 

CHAPTER III 

First Years at the Bar — Marriage (1800-1807) 38 

CHAPTER IV 

Active Professional Life (1807-1815) 57 

CHAPTER V 

Active Professional Life (Continued) — Election to Congress 

(1815-1833) 70 

CHAPTER VI 

Service in Congress — Eulogy on Marshall (1833-1836) 103 

CHAPTER VII 
European Tour (1836-1837) 136 

CHAPTER VIII 

European Tour (Continued) (1836-1837) 165 

ix 



CONTENTS 

CHAPTER IX 

PAGE 

Retirement from Court Practice — Girard Will Case (1838- 

1844) 202 

CHAPTER X 

Anti-Catholic Riots — Pennsylvania Railroad Controversy 

(1844-1849) 235 

CHAPTER XI 
Life in Retirement — Literary Work (1850-1859) 259 

CHAPTER XII 
The Eve of the Civil War (1859-1861) 292 

CHAPTER XIII 
The Civil War Period — Habeas Corpus Pamphlets (1861-1865) 325 

CHAPTER XIV 

The Civil War Period (Continued) — Third Habeas Corpus 

Pamphlet (1863-1865) 370 

CHAPTER XV 
Last Years (1865-1875) 395 

CHAPTER XVI 
Characteristics 441 



LIST OF ILLUSTRATIONS 

PAGK 

Horace Binney in 1833 Frontispiece 

(From the original portrait by Sully, painted for the bar of Phila- 
delphia, and in the possession of the Law Association.) 

jhxBERT STU AST'S PORTRAIT OF HORACE BlNNEY 42 

(From the original painting.) 

Horace Bin hey at about Eighty Years of Age 292 

(From a coloured photograph.) • 



THE LIFE 



OF 



HORACE BINNEY 

¥¥¥ 

I 

BIRTH AND CHILDHOOD 
1780-1793 

OF the paternal ancestry of Horace Binney nothing 
definite is known beyond the fourth preceding 
generation. There is a family of the name in Not- 
tinghamshire, tracing its descent from the Binnoch, " a stout 
carle and a sture, and off himself dour and hardy," who, by 
a clever stratagem, seized Linlithgow Castle for Robert 
Bruce in 1313, and it has long been reported in this family 
that a member of it went to America in the seventeenth 
century. He may have been the John Binney, of Hull, 
Massachusetts, whose son John was born May 31, 1679, but 
this birth is the earliest record on which reliance can be placed. 
Another son, Thomas, born in 1687, was the father of Jona- 
than Binney, born in 1725, who removed to Halifax, Nova 
Scotia, and from whom the late Bishop Hibbert Binney, of 
Nova Scotia, was descended. 

The second John Binney, a deacon of the church at Hull, 
had nine children, the eighth of whom was Barnabas, born 
March 22, 1723. He was a sea captain, and during a part 
of his life a planter in Demerara. He married Avis Ings, 
and their son Barnabas, the father of Horace Binney, was 



HORACE BINNEY [Mt.1 

born in Boston in 1751. He " was educated at the College 
in Providence now called Brown University, and received 
his degree of Bachelor of Arts in September, 1774. He 
held the first grade in his class, and pronounced the vale- 
dictory oration at the Commencement. It was in defence 
of the right of private judgement in matters of religion. 
The discourse shows great freedom as well as fearlessness 
of thought, and proceeded from a mind that was little dis- 
posed to submit to any human authority that had not the 
sanction of reason." 

After graduation, Barnabas Binney went to Philadel- 
phia to study medicine, being under the instruction, in part, 
at least, of Dr. Benjamin Rush. On May 25, 1777, he was 
married to Mary, daughter of Henry Woodrow, a lumber 
merchant, residing in the Northern Liberties. Before that 
date, probably, Dr. Binney entered the American army as 
a Hospital Surgeon, in which career he gained a high repu- 
tation for skill in the treatment of wounds. He was with 
the troops at Valley Forge in the trying winter of 1777-78, 
and was much attached to Washington. It was in that same 
winter, and on the anniversary of Washington's birth, that 
Dr. Birmey's first child, Susan, afterwards married to John 
Bradford Wallace, was born. 

The second child, Horace, the subject of this memoir, 
was born January 4, 1780, " in a house belonging to Thomas 
Williams, in the Northern Liberties, Philadelphia." 1 The 
city and adjoining districts had been evacuated by the British 
but a little over eighteen months before; New York and a 
considerable portion of the South were still occupied by them; 
and the prospect of the successful establishment of American 
independence was far from being assured. In fact, this par- 



1 So stated by Dr. Barnabas Binney in his entry of the birth. 

2 



1780] BIRTH AND CHILDHOOD 

ticular year, 1780, was one which brought many disasters to 
the American cause, and seriously threatened its further 
progress. While neither Dr. Binney nor his wife were 
people who would easily lose faith in the cause to which 
they were devoted, it may well be that at times they realized 
the possibility that the infant of this apparently ill-starred 
year might grow to manhood as a subject of King George, 
and bear through life the stigma of being the son of a rebel. 
Less than two years after his birth, however, the child's 
citizenship was settled by the victory at Yorktown, 2 and the 
formal cessation of hostilities in April, 1783, permitted his 
father to return permanently to Philadelphia, though with 
a constitution seriously impaired by hardship in the field. 

The history of Mr. Binney's boyhood is best given in his 
own words: 

" At the close of the war my father moved his family to 
a house on the south side of Walnut, the second house east 
from Second Street. On September 20, 1838, I pointed out 
the site of the house to my wife and daughter Esther, the 
walls having just been taken down, to be rebuilt. My friend 
W. Meredith lived in it for many years, and after he left it 
was occupied by the Insurance Company of North America 
for offices. It was in that house that my present memory 
began to sprout. All previous existence is a blank to me; 
but I have distinct impressions of circumstances occurring in 
that house before I was five years old, and I think before I 
was four. I recollect well the death of mv brother William, 



3 Mr. Binney had " a very strong impression" that he had been awakened in 
the night by the watchman calling, " Past twelve o'clock, and Cornwallis is taken," 
and of the house being in an uproar in consequence. That the noise awakened 
him is very probable, but it is more likely that he was told as a child that he had 
been waked up on that occasion, than that he actually remembered the incident. 
Still, his memory all through hfe was exceptionally retentive. (See Gail Hamil- 
ton's Life in Letters, vol. ii. p. 708.) 

3 



HORACE BINNEY \_Mt. 5 

who died there in March, 1784. I have an indistinct recol- 
lection also of my brother Henry, who died there on the 14th 
of July, 1783. On the 4th of January, 1785, the day I was 
five years old, my mother proposed me to my aunt Susan, 
as a guard to wait upon her home at night, and I well re- 
member my elation at the thought. How soon does self-love 
show itself in a child!" 

A less rigid censor might have ascribed this elation to the 
manliness and self-reliance which the boy undoubtedly de- 
veloped at a very early age. Such development naturally 
resulted from the wise union of love and firmness which his 
parents, and especially his mother, invariably manifested 
towards him. Of her he wrote: " My mother's person was 
tall and erect, and her carriage of great dignity. The only 
instrument of command that she used with her children was 
her eye. I do not recollect to have ever felt the weight of 
her hand, or the reproof of her tongue, but her clear blue 
eye, the sharpest for a blue eye that I have ever seen, and 
yet the gentlest when bestowing caresses or approbation, used 
to rule us all, and myself in particular, with sovereign sway. 
Upon one occasion in my father's lifetime, as he was about 
to correct me for some fault, my mother came to him and 
asked him to let her punish me, saying she was sure he would 
not punish me severely enough. He accordingly gave me 
into her hands, and she took me into another room, where, 
instead of whipping me, she soon talked me into more tears 
and sorrow than any whipping could have produced. What 
my offence was I do not recollect; nor do I doubt that the 
scene was concerted between her and my father, whose hand 
I never felt. Her influence over me and all her children was 
unbounded. Her commendations were of the highest value 
to all of us; and I saw that sharp, speaking eye upon me 
whenever I did wrong." 



L785] BIRTH AND CHILDHOOD 

The mother's health, always delicate, probably hindered 
jomewhat her personal watchfulness over her children. At 
dl events, Horace Binney, as a lad, met with more than even 
:he most active boy's usual share of bodily mishaps, which, 
lowever, he afterwards looked back upon as not unmixed 
ivils. 

" During the same residence [in Walnut Street] I had 
he good fortune to have my leg broken by a horse and gig, 
md to tumble into an open cellar upon a pile of oyster shells, 
>ne of which left a scar upon my arm now about three inches 
ong. This latter incident occurred, as I recollect, from a 
contest between my sister Susan and myself for one section 
>f a piece of gingerbread, which upon a division I had re- 
erved for myself, and which she insisted was the biggest 
lalf. She claimed it by right of seniority, and it may be 
upposed from what followed that I did not think the reason 
, sufficient one. I well recollect that as soon as the accident 
•ccurred she offered me peaceable possession of both pieces. 
. call these occurrences good fortune, for they, with others 
•ccurring before I was thirteen, seem to have forearmed by 
orewarning me against all personal accidents or injuries 
,f ter that time. But it was altogether rather sharp teaching, 
'or a broken leg, a broken arm, two broken ribs, cuts innu- 
]ie nerable, being once hung up to a hook in the shambles of 
he market-place, and once suspended between two posts with 
Qy head in the gutter and my heels in the air, were more than 
nough to instruct a duller boy than I was. 

" I ought to explain so strange a mishap [as that of the 
aarket-place] . When a part of the Seneca tribe of Indians 
isited Philadelphia in 1791 or 1792, one of the tribe, Peter 
Dlesiquett, who had just returned from France, where he 
tad been educated or civilized under the care of the Marquis 
le la Fayette, was an object of great curiosity. I had heard 



HORACE BINNEY \_Mt.9 

my mother speak much of his manners and appearance. I 
happened to be in the market-house opposite Grindstone 
Alley, between Second and Third Streets, when the Seneca 
Indians were passing on the north side of Market Street, and 
to get above the heads of the crowd I mounted upon the 
railings of the shambles where the butchers hung their meat. 
Upon getting down I was held fast by a hook which entered 
near my right knee, and was lifted off by a bystander. The 
scar remains. The wound gave me trouble for several 
weeks." 

While the family lived on Walnut Street, the boy at- 
tended the Quaker Almshouse school, on the same street, 
above Third Street. About 1786 they moved to a house on 
Arch Street, opposite Christ Church burial-ground, and he 
went to a school behind the Presbyterian church at the north- 
east corner of Third and Arch Streets, and, later on in that 
year, to the Grammar School of the University of Penn- 
sylvania, where he proved himself equal to the requirements 
of the school-boys' code, as the following shows : 

" My impression is that the City of Brotherly Love is 
less pugnacious than when I was a boy. A fight between 
two or more of the boys of this school, when I went to it, 
was a daily recreation to the others. Christ Church burial- 
ground, and the Friends' burial-ground on the east side of 
Fourth Street, then great fields of the dead, were the scene 
of the tournament, the walls being then of a height which 
boys could scale. A chip was placed on my head, youngling 
as I was, the first day I went to this school, and a very good 
boy named Andrew Hazlehurst, whom I afterwards liked 
very much, was told by one of the bigger boys that he didn't 
dare knock it off. Andrew's courage, however, was up to 
the attempt, and I could not with safety have ventured not 
to resent the aggression. It was a drawn battle, and my first 



1786] BIRTH AND CHILDHOOD 

loody nose in fight. We both were applauded and led quiet 
lives afterwards while we continued at school. 

" The practice may have been borrowed from the mother 
untry, from which we formerly borrowed more in school 
ractices than we now do, or it may have been a remnant 
f the Revolutionary War. It never produced ill-will, nor 
was it the result of it. The boys liked each other as well as 
before, and there was no shame in defeat, if the vanquished 
party showed game, or bottom, as it was called." 

At the same school the boy received his first abiding ex- 
perience of the importance of truth, an experience which he 
leld to have been of lasting service. 

" There was in the school a boy named Jack Robinson, 
red-headed urchin, a few years older than myself, and 
who had acquired some influence over me, I know not what 
nor how. I wished to be agreeable to him, and hoping that 
he would refuse so inconvenient a gift as a turtle, I one day 
offered him one that I had — not. To my great horror, the 
^resent delighted him. He said he would accept it with 
pleasure, and would go home with me after school and get 
it. This I desired to prevent, and told him the turtle was 
in a rain-water cask, and could not be got at conveniently 
until the water was out. Robinson said, ' Never mind that, 
I'll get him out, and I'll go home with you after school.' My 
position was distressing, and nothing remained for me after 
school but to dodge Robinson, and get home as quietly as I 
could. I succeeded in this so well that the thing went out 
of my mind, and at the usual time I sat down to my dinner, 
in a back parlour facing the window that looked into the 
yard, with as little care and as much appetite as usual. But 
I had not taken half a dozen swallows before a shadow called 
my eye to the window, and I saw Robinson's red head just 
rising above the partition fence, and as he held himself up 



HORACE BINNEY [Mt.S 

by his hands on the fence, his eyes straining to catch a glimpse 
of the rain-water cask. Until he let go his hold, and dropped 
out of sight, I did not draw a long breath, nor did I resume 
my dinner with much appetite. The question then was how 
to meet him in the afternoon, and what to say ; and I thought 
over half a dozen lies, and rejected them all, as they called 
for a further lie at some other time to end the matter. I 
finally determined to tell him, when he should ask me, that 
somebody had stolen the turtle, and that I would try to get 
him another; and so it turned out. But I told him so with 
shame, and I may believe with contrition ; for I did not for 
a long time cease to think with shame of this departure from 
the truth, which my own foolish promise kept alive in my 
mind. If the He, which, like most of the lies of children, was 
a lie of weakness only, had not given me so much pain, it 
might have led to others of a worse description." 

Although Dr. Binney's ancestors had belonged to the 
Congregationalist body, the established church of Massa- 
chusetts, some of the family, including himself apparently, 
had become Baptists. As he was married by the pastor of 
the First Baptist Church, his wife may have been connected, 
at least nominally, with the same religious body. In Phila- 
delphia, however, his intimacy with Dr. Magaw, the rector 
of St. Paul's, led him to send his children regularly to that 
church, so that Horace Binney's religious associations were 
with the Episcopal Church from the first, though he did not 
formally join it until later. Of his attendance at St. Paul's 
he wrote: 

"My mother's health rarely permitted her to attend 
church, and my father's practice perhaps never. I am de- 
voutly thankful to him for having thus selected for me the 
Protestant Episcopal Church, of which I am now a member, 
with the fullest approbation of my judgement in all respects. 



1788] BIRTH AND CHILDHOOD 

Dr. Magaw was one of my father's particular friends, and 
our families were intimate. I cannot say that my sister and 
myself were not sufficiently sensible to some of the peculi- 
arities of his manner in the pulpit, as we certainly were to 
the more striking peculiarities of Dr. Pilmore, who also 
preached at St. Paul's, and was in some way connected with 
that church; but if Mr. Harris, the clerk, had sometimes to 
cut his eye at us, he was never obliged to go to extremities. 
We were, however, but goers to the church, and not members, 
as neither of us had been baptized. I have supposed that this 
was attributable to the influence of Baptist opinions or usages 
upon my mother." 

A boy of active mind, the son of an officer of the War of 
Independence, it is to be supposed that even before the close 
of what the late John Fiske happily styled " the critical 
period of American history" young Horace Binney heard 
enough conversation on public affairs to realize in some 
measure that the States, too loosely united by the Confed- 
eration, were, as he afterwards expressed it, " the hope of 
their enemies, the fear of their friends," and destined, unless 
the disintegrating tendencies were speedily arrested, to be- 
come " the shame of the world." At all events, when only 
eight and a half years old, he was privileged to take part in 
a public demonstration to hail the dawn of a better day, for 
on July 4, 1788, he walked with the other Grammar School 
boys in the Federal procession, to celebrate the adoption of 
the Constitution by ten States, and the consequent assurance 
of its establishment. That this event made a deep impression 
on his mind may well be believed, including, in all probability, 
a boy's supreme contempt for the backwardness of the three 
States — New York, North Carolina, and Rhode Island — 
which still held aloof from the new bonds of union. Cer- 
tain it is that throughout his life the Constitution had no 

9 



HORACE BINNEY [iET. 8 

more devoted adherent, and that he always looked back with 
sincere gratification to his youthful share in the public re- 
joicings over its adoption. Seventy-five years later, shortly 
before the Rebellion reached its high-water mark, he wrote: 
" In national politics I have been a Federalist, and nothing 
else, since I was an adult; and have some claims to it from 
childhood, having, as a member of the University grammar 
school, walked with my class in the Federal procession on 
the 4th of July, 1788, on the ratification of the Constitution 
by the required number of States. ' What is bred in the 
bone' — you know the proverb. I am perhaps the survivor 
of the whole of that procession, and, dead or alive, I shall 
never meet any one of that body who shall be able to reproach 
me with deserting the Union, from fear, favour, or affection, 
or from any passion, prejudice, or hope." 3 

Early in 1787 Dr. Binney undertook to explore some 
wild lands which he had recently taken up in Luzerne County, 
and the exposure incident to this told seriously on his weak- 
ened constitution. Accompanied by his wife, he sought 
Berkeley Springs, in Virginia, in the hope of improvement, 
but it was too late, and on the return he died at Chambers- 
burg, on June 21, 1787. This early loss of a father's care led 
to a change in the boy's life. " After my father's death," he 
wrote, " my mother, in the spring 4 of 1788, to remove me 
from the bad company and temptations of the city, sent me 
to school at Bordentown, where I lived in the family of the 
principal, Burgess Allison, until the month of December, 
1791. My time passed pleasantly enough in this place, and 
not altogether unprofitably. We had two vacations, in fall 
and spring, when I returned home for a month. At the close 

3 Letter to Dr. Francis Lieber, April 13, 1863. 

4 Apparently this should read " summer," as it must have been after July 
4, 1788. 

10 



1788] BIRTH AND CHILDHOOD 

of each term the boys of the school presented a drama of 
some kind, — tragedy, comedy, or farce, — in which, from my 
fair complexion and light hair, I had always the part of a 
female cast to me. Mr. Allison had a taste for such repre- 
sentations, and was quite an artist in arranging the scenery 
and dresses. Our studies during the term were prosecuted 
very fairly, and we had the Delaware and a beautiful country 
for the exercises necessary to health. . . . 

" On my first passage to [Bordentown] in the packet, I 
embarked at Philadelphia on a Thursday morning, and was 
presented by the captain to Mr. Allison on Saturday even- 
ing. There was a high and rapid fresh in the river, and a 
heavy fog and little wind. I now often see at low water a 
collection of rocks, called the Hen and Chickens, upon which 
our sloop remained, with great gravity, some portion of these 
seventy -two hours. . . . 

" One or two of my boy's tricks at school I will set down, 
that my children may the better know the manner of person 
I was. There was a boy at school from the eastern shore of 
Maryland, of whose standing with the principal, which we 
thought had no very good ground, some of us were a little 
jealous. He used to keep himself clear of our forays among 
the orchards in apple time, and other boys' law, and as we 
thought curried favour on that and other accounts. His 
word was taken when ours was not, or with grains of allow- 
ance, and we owed him a grudge which in due time we meant 
to pay. We all slept in a large dormitory, with our trunks 
at our bed-heads, and Teackle's was a large one, in which we 
knew he kept many little comforts that he did not share with 
the boys. This added to his disfavour. Upon a certain holi- 
day, when the use of a gun was not prohibited to us, we 
bagged half a dozen young chickens from the master's 

poultry-yard, and at nightfall put them quietly into 

11 



HORACE BINNEY [JEt. 8-11 

Teackle's trunk, which we found the means to unlock. 
The tidings of the slaughter soon spread, the chickens were 
traced to our bedroom, and we were all ordered to open our 
trunks for examination. Some of us resisted, and said the 
suspicion was an affront, which made the master all the 
keener. Teackle offered at once to open his, and to him 
the master replied that it was quite unnecessary, for nobody 
could suspect him, but the other boys must open. He had 
no doubt they were guilty, from their unwillingness to let 
him see. We began thereupon to open trunk after trunk, 
but doggedly and unwillingly, and the master looked blank 
enough when no chickens were found. In the end, Teackle's 
trunk alone remained, and he again offered, but somehow or 
other not quite so boldly as before, and the master then said 
that upon the whole he would examine Teackle's trunk also, 
to show his impartiality. When the chickens were all found 
there snug enough, under Teackle's clothes, you may imagine 
his countenance, and the countenances of all of us. He was 
so confounded that he was unable to assert the truth, and it 
was not until the scent of the real poachers had become cold, 
that Teackle got courage enough to say, and to stand to it, 
that he was none of them. I think that after this we were 
better friends with him. 

' Upon another occasion, on a freezing Saturday after- 
noon, a boy named Jim Gillespie and myself set off after 
dinner, and without leave, to go to his grandfather's, Dr. De 
Normandy, at Burlington. I think we rather intended to 
give the school a fright, and truly we did. All that could 
be reported of us at night was that we had been seen going 
to our skating-ground, on a creek of the Delaware, and the 
consequence was that the country was scoured. Just as we 
had gone to bed at Dr. De Normandy's after our ten miles' 

walk in the snow, and supper, one of the servants stole up 

12 



1788-91] BIRTH AND CHILDHOOD 

and whispered that Mr. Jo Reed had arrived on horseback. 
He had come either to find us or to report our disappearance. 
As we were not required to get up, Gillespie and I deter- 
mined not to be carried home in disgrace, and we were up 
accordingly long before day, and off again for Bordentown. 
When about two miles from Bordentown Mr. Reed overtook 
us, and with a hearty laugh at our manoeuvre told us both to 
get up behind him, which our fatigue consented to in spite 
of our shame ; but we had not gone a quarter of a mile before 
the horse balled, and rolled down with all three of us in the 
snow. We then declined remounting, and Mr. Reed pushed 
on without us. The joke of the fall got there as soon as he 
did, and although all were at the door to receive us, instead 
of being flogged as we ought to have been, either the laugh 
at the accident or Sunday morning saved us at that time, and 
a serious admonition from Mr. Allison the next day perhaps 
did us more good than a flogging." 

Another incident, to which Mr. Binney traced his rooted 
aversion to debt, occurred during his life at Bordentown. 

" I always left home with a little outfit of a dollar or two, 
and received besides a weekly allowance of pocket-money 
which was paid to me by the master. This should have 
sufficed, but I wished to make a present to a little girl to 
whom I had taken a fancy, and I directed a cabinet-maker 
in the town to make a small mahogany box for me, for which 
I was to pay a dollar. The box was made and given away, 
and then came the day of payment without the money to 
pay for it. The cabinet-maker asked for it once, civilly 
enough, and then rather angrily, and at last I got the horrors. 
His shop was on the way to one of our favourite playgrounds, 
and both in going out and in coming in I had to make a 
circuit to avoid it. Many were my efforts to prevent my 
companions from noticing these deviations, but I always 

13 



HORACE BIXXEY [^t. 8-11 

made them with the fear of meeting the cabinet-maker not- 
withstanding. If I saw him in the street. I felt a shivering; 
and if he appeared to be coming towards me. my hair stood 
on end. I used to think the constable looked queerly at me, 
and more than once I thought from the principal's looks or 
remarks that he knew it. that my mother would know it. and 
that all would be over with me. I dreamt of the box nightly, 
and thought of the debt all the day long. I tried to accumu- 
late my weekly stipend to make up the sum, but the trial was 
too severe. I looked forward to the vacation as my only 
rescue, and the happiest hour of my life was when I paid 
the debt with my outfit. It is from such occurrences that the 
character in af ter-lif e is formed for better or for worse. 5 and 
I am thankful that neither this, nor any of my boyish errors, 
which were many, had the effect of hardening me. The love 
I bore to my mother, the earnest desire I felt to have her 
good opinion, and the keen apprehension of her displeasure 
were my security against flagrant misconduct under the many 
temptations that were around me." 

The river Delaware was the scene of Fitch's experi- 
mental steamboat trips in 1788, one of which Mr. Binney 
saw from Bordentown. '* She had come from Philadelphia, 
but I know not in what length of time; and after leaving 
Crosswick's Creek, where she had come to at the wharf, de- 
parted for Trenton; but I heard no more of her trip. She 
had three paddles at the stern, which were moved by a chain 
passing from the neighbourhood of the cylinder near the 
centre of the boat. My recollection is that the movement of 
the paddles did not show much force, and that her motion 
was slow. The paddles were so arranged as to strike the 

1 Writing to his son, in 1S27, Mr. Binner said, ■ The affair of the dollar 
which I owed a cabinet-maker when I was eleven years old has been worth ten 
thousand to me." 

14 



11788-91] BIRTH AXD CHILDHOOD 

water in succession, going into the water near the stern, and 
toushing from it, until they were lifted out by the machinery 
:o return and renew the stroke. I think she required some 
epairs at Bordentown to keep her a-going." 

In December, 1791, Mrs. Binney married Dr. Marshall 
Spring, of Watertown, Massachusetts, a man of the kind- 
iest nature, who at once assumed a father's place towards 
us step-children. Accordingly, the boy returned to Phila- 
lelphia, then the national capital, where the family remained 
luring that winter. 

" My mother's residence was on the north side of Market 
Street, between Fifth and Sixth, opposite the mansion of 
3-eneral Washington, and next to the house of General 
Hamilton, then Secretary of the Treasury. At that time 
ids was the court end of the town. There was no shop or 
varehouse near us, and, indeed, few buildings of any kind to 
:he west. Mr. Markoe's house, near Tenth Street, was in the 
xnintry. My position at my mother's door enabled me par- 
:icularly to observe the movements about the President's. I 
)f ten saw this renowned man, and recollect especially his fine 
igure and command on horseback, an exercise which he fre- 
quently took. Mrs. Washington's matronly appearance I 
ilso recollect, once in particular as she came across the street 
-vith Mr. Lear, the President's secretary, to pay my mother 
i morning visit. This was not out of keeping with her 
general manners, which were not stately; but there was at 
:hat time much more ceremony and state in the community 
generally than at present, and the incident alluded to prob- 
ably struck me and fixed my attention. The prevailing cere- 
monies at that time were the remains of colonial usage, 
adopted from the mother country. General Washington's 
coach and six were sometimes got up, and his coach and 
|four more frequently. Mr. William Hamilton's post-chaise 

15 



HORACE BINNEY [iET. 12; 

( ' Billy Hamilton's poshay' ) and four, the boys in scarlet 
jackets and hunting caps, was his frequent conveyance to the 
city from the Woodlands. . . . 

" In April, 1792, when my mother's family were to re- 
move to the house of Dr. Spring, in Watertown, about seven 
miles from Boston, I was permitted to go there by sea, and 
it was my first acquaintance with it. I well recollect that I 
had a severe seasoning, for the voyage occupied a fortnight, 
one-half of which was a gale of wind; but after three days 
of sea-sickness, I enjoyed the passage vividly, and I have now 
on my mind, with the distinctness of a picture, Holmes Hole 
and Tarpaulin Cove, in Martha's Vineyard, where we cast 
anchor to obtain refreshments, Nantucket Shoals, and the 
dashing of the waves on what I believe is called the Great 
Shoal, the coast of Cape Cod, and, above all, the beauty of 
Boston Harbour, the spires of the town, Beacon Hill, and 
the whole country sending back the bright rays of the rising 
sun as we entered on a glorious May morning. It seemed 
as if town and country, the hills, the uplands, and the islands, 
had all arisen with the sun to offer their joyous thanks to the 
Creator for the returning light. 

" I arrived before the family, and passed a couple of 
days in Boston, at the house of Mr. Lucas, one of my father's 
friends, who came to the packet at Long Wharf for me, and 
as we were going up, stopt a gentleman named Mackay, and 
told him I was Dr. Binney's son. Captain Mackay brought 
the blood to my face by saying that he hoped I would be a 
better man than my father, but it went back upon his add- 
ing that I might be satisfied if I was as good." 

Soon after reaching Mr. Lucas's the boy went out alone 
for a walk, not reflecting that the streets of Boston, unlike 
those of Philadelphia, had a character of their own, and not 
one borrowed from a chess-board. Interested in the novel 

16 



792] BIRTH AND CHILDHOOD 

ights, he went on without noting the turns, until he finally 
ealized that he did not know the way back. Boy-like, he had 
orgotten to ask Mr. Lucas's house number, or even the name 
f the street, and now he was ashamed to inquire where the 
ouse was, thinking that every one would say he was a silly 

hiladelphia boy, who did not know enough to find his way 
tome. The farther he went, the more astray he felt, but 
>resently he remembered that in the morning, as he came up 
'rom Long Wharf, he had seen a high monument, so he 
sked some one where the monument was, and was told it was 
n Beacon Hill. He went there, and making out Long 
Vharf, took his bearings and went directly to it. Once 
here, and remembering the way he had gone in the morning, 
e easily found the house again, having asked no questions 
xcept about the monument. 6 

" On Saturday after my arrival, one of Dr. Spring's 
ledical pupils came for me, and took me to the mansion 
ouse at Watertown, where I was received by Mrs. Gray, 
)r. Spring's sister, a venerable lady who had been for some 
ime resident in his family, and her daughter, Polly Gray, 

very sprightly and intelligent woman, who afterwards 
larried Barnabas Bidwell. I perceived, by the order of 
tiings on the night of my arrival, that Mrs. Gray was a very 

ligious woman, the evening being passed in some degree 
s a preparation for the Lord's day. The sewing and knit- 
ng were put away at sunset, and either books or sober con- 
ersation employed the remaining hours. On the next day 
ve went to meeting, as it was called (a Congregational 
hurch), morning and afternoon, and immediately after 
undown what was my dismay at seeing the sewing and 
nitting resumed, and pretty much the usual course of a 



"See Gail Hamilton's Life in Letters, vol. ii. p. 711. 
17 



HORACE BINNEY [JEt. 12 

week-day evening pursued. I did not dare to express my 
surprise otherwise than by my looks; but I was soon made 
to understand that the Lord's day was thought by Mrs. Gray 
to begin on Saturday evening and to end with sunset on 
Sunday. She was, I believe, the widow of a clergyman who 
had been settled at Kittery, in Maine, where this opinion was 
common, as, indeed, it was, and I believe still is, in many parts 
of New England, but after my mother's arrival there was 
no sewing or knitting on Sunday evening, nor, from regard 
to Mrs. Gray, any on Saturday evening. For some years, 
however, after my removal to Watertown the waggoner's 
team was at rest as soon as the sun was down on Saturday 
evening; and I could generally tell when the sun was down 
on Saturday by the sound of the wheels upon the stony road 
before Dr. Spring's house. Before I left Watertown to 
return to Philadelphia, Saturday evening had lost its dis- 
tinction in the part of Massachusetts where I lived, and I 
am not sure that Sunday evening had quite regained hers. 

" Very soon after my mother's arrival Dr. Spring took 
me to a boarding-school near Medford, about six or seven 
miles from Boston, and as many from Watertown, of which 
a Mr. Woodbridge was principal. I was already prepared 
to enter the Freshman class at Cambridge, but was too young. 
I was taken there to grow older, rather than to be fitted for 
college. The house and grounds appropriated to this school 
were formerly the property and residence of Sir William 
Pepperill, and resembled some of the old manorial residences 
in England. The mansion house was large and stately, very 
ample for the accommodation of large classes of boys and 
girls, for there were both departments in it, and the class- 
rooms of the boys were in a large summer-house in the gar- 
den, built with the pretensions in some degree of a Grecian 
temple. The gardens were in the ancient style, the walks 

18 



1792] BIRTH AND CHILDHOOD 

straight, the box borders and some of the trees trimmed as is 
now very common in Italy, and flowering shrubs and fruit- 
trees planted about in great profusion. It was to the eye a 
very attractive place, but I was not destined to remain there. 
" On the day after my arrival I was called up by Mr. 
Woodbridge to recite a Greek lesson in the Acts of the 
Apostles. I ought to premise, in excuse of myself, that for 
a year before I left Bordentown I had passed for the best 
scholar at that school. I was grinder to several of the boys 
who were older than I was, and I thought myself quite strong 
in the Greek Testament. I had been quite frequently flat- 
tered by being told so, and I certainly believed it. I began 
my translation to my new master with some confidence, but 
had not proceeded far, when he told me I was wrong, and 
g^ave what he deemed was the proper version, to which I 
replied that I was right, and he was wrong. He immedi- 
ately asked, ' Is this your Philadelphia politeness?' I an- 
swered, ' It is my Philadelphia Greek, sir.' This, to be sure, 
was very impudent on my part; but I recollect feeling at 
the time that my master was wholly ignorant of Greek, or 
lie could not have translated the verse as he had done. I do 
not recollect how the affair ended in the recitation-room, but 
i it did not end in such a way as to make me forget the occur- 
rence. None of the boys in the school were as far advanced 
as I was, and I therefore felt myself too much above them 
to take counsel of them in the matter ; I took my own counsel. 
While I was pondering my course, the boys were called to 
dinner in a parlour by themselves. The girls were in another 
parlour. It occurred to me that I could not stay at that 
school any longer, but I did not readily perceive how I was 
to get away, for Dr. Spring had returned home after leaving 
me, and might not perhaps come to see me for a month. 
Even the way to his house was unknown to me, as I had 

19 



HORACE BINNEY [^Et. 12-13 

never gone over it but once. There were difficulties both 
ways, staying and going, which I chewed more than myj 
dinner; but while I was at the work I observed that a ragged 
leg of mutton, which had been terribly hacked, was brought 
from the girls' table and placed on the boys' as a supplement 
to their own scant supply. This settled the point. I had not 
been accustomed, as I thought, to eat after the girls, and I 
liked the first instance of it even less than Mr. Woodbridge's 
Greek. I accordingly proceeded forthwith to my sleeping- 
room, tied up in a handkerchief the few clothes I had brought, 
and walked with it in my hand through the dining-room to 
the front door, and from thence to the high road. Nobody 
questioned me, though all saw me. It was then about two 
o'clock, and was beginning to rain, but it was impossible to 
go back, and I therefore proceeded through rain and mud, 
guessing and asking my way, until I got with my pack to 
Dr. Spring's house. My poor mother was, of course, much 
grieved to see me, and feared I had been turned away; but 
I soon quieted her as to this, by saying I had come away of 
my own accord. The inquiry then followed as to the cause, 
and I never shall forget the suppressed laugh and the con- 
vulsive shake of Dr. Spring when I told my mother that it 
was because Mr. Woodbridge did not understand Greek. 
There was something so irresistibly droll in a flaxen-headed 
boy of twelve disposing of a school-master's reputation at a 
slap, and leaving him in contempt to trudge home in the rain 
and mud, that after a little while my mother joined in the 
laugh, and then I forgot all my trouble and told of the leg 
of mutton. It was arranged the next day that Dr. Spring, 
during his morning's drive, should call for my books and 
explain why I did not return ; but how he explained it I never 
asked or knew. I think that it would have ruined me had I 
been compelled to return. 

20 



1792-93] BIRTH AND CHILDHOOD 

" I was then placed under the care of a clergyman at 
VIenotomy, now called West Cambridge, the northwest 
parish of Cambridge, and there I remained until July, 1793, 
vhen I entered Harvard College. The year I passed at 
VIenotomy was one of the brightest periods of my life. Mr. 
Pisk, the clergyman, was a most amiable man, and I was his 
mly pupil. I lived about a furlong from his house, with a 
notherly woman, whom everybody called Aunt Polly Cook, 
he daughter of the former clergyman of the parish, and who 
vatched over me and loved me as her own child. In front 
>f the houses, — Mr. Fisk's and Aunt Polly Cook's, — the only 
louses in that part of the village, was a pretty lake, about a 
nile long and perhaps half a mile wide, full of fish, and 
rozen half-way to the bottom during the winter. Mr. Fisk, 
laving but a small salary, cultivated a few acres about him, 
)lanted and ploughed his own Indian corn and potatoes, and 
owed and cut his own rye, and between riding horses to 
)lough, cutting my fingers with the sickle, digging potatoes, 
ishing and skating, I made out to grow old enough to go to 
College, doing little more with my Latin and Greek than 
>owing to them once a week to keep up the acquaintance. I 
iught to say, however, that I was terribly frightened in the 
pring by the prediction of a poor consumptive sister of Miss 
}ook that I should be rejected by the examiners; and shortly 
,f ter she died. I knew that she had uttered the prediction in 
| moment of irritation, because I had shattered her nerves by 
lamming to the door; but still it was a prediction, and she 
vas now dead; and the dying are thought to look further 
rito futurity than other people. It frightened me, however, 
nto hard study, as perhaps it was kindly intended to do; and 
vith two or three months of good work, I not only got in, but 
rith credit." 



21 



HORACE BINNEY [JEt. 13 

II 
LIFE AT COLLEGE AND AS A LAW STUDENT 

1793-1800 

HARVARD COLLEGE in 1793 contained but few 
professors and tutors, and less than three hundred 
students. The buildings were Massachusetts, Har- 
vard, and Hollis Halls and the Holden Chapel. The presi- 
dent, Joseph Willard, lived in the Wadsworth house, and 
there Horace Binney was lodged, as one of the family circle, 
for the first three months of his college life. Dr. Spring's 
residence was but four miles away, and at first the boy must 
have been there frequently, during the period of his mother's 
last illness. She died on November 9, 1793, at the age of 
thirty-seven. 

" Among the most grateful recollections of my youth," 
he wrote, " is that of tending her dying bed and soothing her 
intervals of exemption from extreme pain with some simple 
airs on the flute, which I was then learning. She employed 
me about her in many little offices for her comfort that a boy 
could perform, and so spoke of me to her friends as to give 
me quite a character in the neighbourhood. Alas ! that I was 
to be deprived of the happiness of this relation in after-days, 
when I should have better appreciated it, and when I should 
have better known her, though it would have been impossible 
for me to love her more than I did." 

The following June was saddened by the death of 
Horace Binney's only remaining brother, John, a boy of] 
nearly ten years, and of remarkably bright mind. Of Dr. 
Binney's six children but three were now left. 



1793] LIFE AT COLLEGE 

After Mrs. Spring's death her children's nearest friends 
were their step-father and their aunt, Mrs. Nicholas Brown, 
)f Providence. " I doubt," wrote Mr. Binney, " whether 
tnen in general love their own children more than Dr. Spring 
loved us all. The proofs of it recollected by me are innu- 
merable. His house was our home while he lived. He con- 
stantly watched me, and often visited me while I was in 
college, gave me such advice as a father would give to his 
)wn son, took the highest satisfaction in every report of my 
improvement, and omitted nothing that he thought would 
make me better or happier. . . . 

" My aunt Avis was a person of remarkable understand- 
ing, and as nearly perfect as human nature admits of. She 
was the bosom friend of my father to the time of his death, 
and upon that event she transferred to his children, and con- 
tinued to them during her life, the vivid affection she had 
borne to him. . . . My winter vacation while at college was 
never spent so agreeably as at her house, when I was from 
fourteen to seventeen years old, and my aunt between fifty 
and sixty ; yet frequently I was the only inmate with herself 
and her domestics. I was a stranger to restraint and equally 
so to ennui, and I was always learning or enjoying while in 
her presence. I hope I learned some things from her that I 
never can forget. . . . 

" I was always within reach of domestic counsel; but 
with all this I recollect college as a perilous place, and call 
to mind perhaps half a dozen forks of the road, where, by 
the providence of Heaven, I took the right path, when the 
other would probably have led me to ruin. In one instance 
my safety was owing to the suggestion of one of the most 
profligate young men in college, who was about a year after 
expelled on account of misconduct, and who seems to have 
given evidence in my case of some remains of virtue, which 

23 



HORACE BINNEY [JEt. 13-17 

with due care might have saved him. ... It was well fori 
my virtue that I was ambitious, for my desire for distinction j 
in the class was such as to keep me straight. . . . My appe- 
tite for study was so great that upon one occasion I remained 
at my chambers during an autumnal vacation, the solitary 
tenant of Hollis Hall, instead of going to Dr. Spring's, 
where I was always happy, and studied every day of it 
fourteen hours by the clock." 

This vacation work was not undertaken from fear of 
falling behind his classmates, but from a consciousness that 
a thorough education was unattainable by the ordinary 
routine of study; and this consciousness and the voluntary 
exertions to supply the want are even more noticeable, as 
showing Horace Binney's early development, than the num- 
ber of hours which he devoted to the end in view. That much 
was lacking in the college course of that day there can be no 
doubt. There was practically no teaching at all. Lessons 
were set, but, whether recited well or ill, little comment or 
explanation was made. The knowledge acquired was what 
the prescribed books contained, or what the student might 
gather for himself from such other books as he had access 
to. Even English composition gave but a limited chance 
for original work, as but one subject was given out at a 
time for the whole class. The subject might, however, be 
treated in either prose or verse, and there were few who 
did not attempt the latter, which indicates a more general 
poetic ambition than prevails among the undergraduates of 
to-day. 

Among his classmates (the class numbered fifty-four at 
graduation) were Samuel Farrar, afterwards a tutor at 
Harvard; William Jenks, afterwards Professor of Hebrew 
and English Literature at Bowdoin; William Ladd, James 
Richardson, William Merchant Richardson, afterwards a 



1793-97] LIFE AT COLLEGE 

member of Congress and ultimately chief justice of New 
Hampshire ; Asahel Stearns, also a member of Congress and 
University Professor of Law; John Collins Warren, after- 
wards Dean of the Harvard Medical School and member of 
many learned societies in Europe and America; and Daniel 
Appleton White, for many years judge of the Probate 
Court of Essex County, Massachusetts. An intimate friend, 
though of the class of 1796, was John Pickering, afterwards 
eminent for his legal and scholastic attainments. Early in 
1860, when Judge White and he were the only survivors of 
the class, Mr. Binney wrote: " How well I recollect Farrar, 
that gentle, equable, erect, self -poised, benign form and 
figure and face, all foreshowing his pure and firm character 
in life; and Ladd, too, oftentimes boisterous, rough, and 
disagreeable, but always hearty and intelligent, and since so 
steadfast and strong, too, in his impracticable wish to banish 
war from the world before its time comes. I knew little of 
the Richardson who was afterwards chief justice of New 
Hampshire, and something, I know not what, kept us apart; 
but James Richardson was true, cordial, gentle, with a most 
pure mind and cultivated taste, too." 

Of college friendships the closest was with White, a 
friendship unimpaired by the fact that the two were com- 
petitors for the highest honors at graduation. " I could 
never," wrote Mr. Binney, " gain an advantage over him in 
anything, and he was in general more mature than I was. I 
may perhaps be excused for saying that he was some years 
older. He was frank, manly, kind-hearted, and was as ready 
to applaud me as any one in the class. I have no recollection 
of White that is not full of satisfaction to me, and I believe 
that he is now in heart and affections what he was when 
young." 

Writing to Judge White's son, nearly sixty-six years 

25 



HORACE BINNEY [^Et. 13-17 

after graduation, Mr. Binney said, " During our college 
intimacy he thought of himself very constantly, to bring him 
or to keep him to the internal standard that was his pole-star ; 
but never in connection with the design or desire of excelling 
another, the common stimulus of young men at college, and 
the root of a thousand bitter fruits. This may account for 
some mutual manifestations during our college intimacy. 
Whether I owe it to him, or it was an hereditary seed, I do 
not know, but from my earliest day to the present I have 
been in perfect sympathy with your father in this respect. 
There was a trial examination of us two, before the whole 
class, near the close of the senior year, and without any pre- 
vious intimation to either of us, or to anybody that we knew 
of. It was by Professor Pearson, and upon Burlamaqui's 
two volumes on Natural and Political Law. He began with 
your father, who was the oldest by three or four years, and 
to every question, perhaps a hundred, which Professor Pear- 
son put to him on one of the volumes he answered fully 
and accurately. And I was delighted, as usual, with his 
performance. 

" Had I known what was to follow, I should perhaps 
have been disturbed by thinking of myself; but when my 
name was next called I was in the calmest temper for re- 
sponding in like manner upon the other volume. Had I 
envied your father the least in the world, his success might 
have over-excited and flustered me, and this, I am sure, would 
have pained him more than anybody. At the end of my 
examination the class was dismissed, and then we first knew, 
as the class did, Dr. Pearson's design. The trial and the 
result were the things desired by us both, and so it was with 
him always. It would have been unjust to say there was 
competition between us, any more than there is between two 
pretty fast walkers side by side, who are talking and com- 

26 



1793-97] LIFE AT COLLEGE 

muning with each other all the way, and mean to arrive side 
by side at the boundary." * 

Of college amusements Mr. Binney has left no record, 
but he was a member of the Institute of 1770 and one of 
the founders of the Hasty Pudding Club. In Senior year 
he was president of the class, and his classmates generally 
thought him their best scholar. The faculty thought other- 
wise, but deemed his position so nearly equal to the first 
as to call for the creation of a special " part" (the English 
Dration, never before assigned to any one except the vale- 
iictorian) at the Commencement of 1797, instead of that 
usually assigned to the second place. The oration itself he 
regarded as a failure, owing to its topic. Looking back on 
lis college course, after forty years of active life, he wrote: 

" It does not now occur to me that I ever missed a recita- 
tion, or the chapel services at six in the morning, winter or 
ummer. Much that I acquired there is in one sense lost, and 
:an now never be regained, but the unfading art which I 
icquired at college was that of study ; and if the acquisitions 
of knowledge I there made by it are faded or fallen from 
the surface, I may hope that they have still fertilized the 
soil of my mind, and certainly the art or faculty of study has 
never left me. Perilous were many of my passages during 
those four years, but I have no recollection that I ever did 
a thing to make my friends blush, and their praises when 
I left it gave me courage to begin my first step in the 
world." 

While in college Horace Binney occasionally visited the 
court-houses in Boston and Cambridge, and listened to some 
of the ablest forensic orators of the day. He was particu- 



1 Letter to Rev. W. O. White, May 11, 1863. A letter to Dr. Lieber, Decem- 
ber 24, 1867J- alludes to this incident, adding, " The class saw that it was an 
examination only for the first honour, and it was a drawn match." 

27 



HORACE BINNEY [Mt. 17 

larly interested in the trial of one Claflin, indicted of 
blasphemy, and defended by Theophilus Parsons, between 
whom and James Sullivan, the Attorney-General, occurred 
" an exhibition of intellectual gladiature of the brightest 
kind." 

" My imagination fired at the spectacle of this omnis 
homo, as well furnished in theology as in law, and of as 
much repute for Greek as for English, Socratic in his sub- 
tlety, and not otherwise in his careless dress, his purple 
bandana handkerchief curled loosely over his neckcloth, and 
his reddish-brown scratch something awry, he all the while 
pouring from under it the doctrines he had culled, and 
weaving them up with the subtlest ingenuity, to make a 
covering broad enough for Claflin. It was a glory of the 
bar. But the stiff old statute was too much for him. I think 
I recollect a part of Claflin's sentence, so strange to the ear 
of a Pennsylvania lawyer, — that he should sit an hour upon 
the gallows, with the rope round his neck ! Barring the rope, 
I should have been willing to sit there for two, not for 
blasphemy, nor alongside of Claflin, but to hear a repetition 
of Parsons." 2 

Despite his admiration for Parsons's eloquence, the young 
man's own inclination was to his father's profession. During 
his senior year he attended Dr. Warren's lectures on anatomy 
and read several medical works, but Dr. Spring strongly 
dissuaded him from medicine, saying that if he chose any of 
the learned professions, it ought to be law. To the youth of 
seventeen success in that calling seemed too uncertain, and 
hence, on reaching Philadelphia, in November, 1797 (the 
prevalence of yellow fever there having kept him in Provi- 
dence for some months after his graduation), he sought a 



Leaders of the Old Bar, p. 17. 

28 



1797] LIFE AT COLLEGE 

position as apprentice with Cunningham & Nesbit, then 
extensive shipping merchants. He afterwards admitted 
having done this without much consideration and mainly 
because he knew nothing against a mercantile career. For- 
tunately the counting-house was full, and he turned to law, 
apparently as a last resort. That the final decision was in 
a measure dictated by chance. was due mainly to the circum- 
stances of his position. He had no relatives in Philadelphia, 
nor even any friends who knew him well enough to advise 
with reference to his temperament and qualifications. His 
guardian, Dr. David Jackson, belonged to the profession 
from which Dr. Spring had already turned him. He had, 
it is true, a moderate patrimony, but he must have realized 
that, beyond that,, all that the future could offer would have 
to be won by his own efforts, and at the same time that his 
habits of industry and application warranted a reasonable 
hope of success in whatever he might attempt. 

The step once taken, doubt and hesitation vanished, and 
he bent all his energies to the task before him. He esteemed 
himself particularly fortunate in his preceptor, Jared Inger- 
soll, to whom he afterwards devoted one of his sketches of 
the " Leaders of the Old Bar," and whose name, he said, " I 
can never mention without the prof oundest veneration, as my 
master and guide in the law." His method of study in Mr. 
Ingersoll's office was undoubtedly the same which, in another 
of those sketches, he described as that which Edward Tilgh- 
man had pursued. " [This], which may be called the old 
way, is a methodical study of the general system of law, and 
of its grounds and reasons, beginning with the fundamental 
law of estates and tenures, and pursuing the derivative 
branches in logical succession, and the collateral subjects in 
due order, by which the student acquires a knowledge of 
principles that rule in all departments of the science, and 

29 



HORACE BINNEY [^Et. 17-19 

learns to feel, as much as to know, what is in harmony with 
the system and what is not. . . . The profession knows 
[this] by its fruits to be the most effectual way of making 
a great lawyer." 3 

Of his life as a law-student, he wrote: " My office life 
with Mr. Ingersoll was a very happy one. I endeavoured to 
learn my profession accurately, and after yielding in a few 
instances, I afterwards strenuously resisted the social tempta- 
tions which on all sides assail a young man in a large city, 
especially if he can play pretty well on the flute and sing 
an agreeable song, as I could. I had not spread my sails to 
this gale for more than a few months before I perceived the 
danger, and from that time I so reefed them as to make 
pretty safe weather. When I look back, however, upon this 
period of my life, uncounselled as I was, and without family 
friends near me, committing faults, but retaining my prefer- 
ence for virtue amid many bad examples, I feel the deepest 
gratitude to the Providence that guarded me, as well as to 
the maternal friend at a distance, whose former counsels were 
ever recurring to me, as the whisperings of an attendant 
genius. 

" Two of my fellow-students were Mr. Wallace, who 
afterwards married my oldest sister, and Mr. John Sergeant. 
A third friendship was soon after, from professional affini- 
ties, contracted with Mr. Charles Chauncey. They con- 
tributed to keep up my own standard of rectitude, and in 
many things to raise it. The contentions of professional life 
and the struggle for personal success may sometimes have 
given a momentary disturbance to the connection of those of 
us who became devoted to the bar, . . . but it rarely happens 
to three individuals of the same profession to live so long in 



Leaders of the Old Bar, p. 50. 
30 



1797-99] LIFE AS A LAW STUDENT 

unbroken union as Mr. Chauncey, Mr. Sergeant, and my- 
self." 4 

The Law Association of Philadelphia possesses a record 
)f this friendship, in the following document : 

I, Horace Binney, of the city of Philadelphia, do hereby prom- 
ise to pay to John Sergeant one-half of the first fee I shall receive 
is attorney in any court of the State of Pennsylvania, or any other 
State, as witness my hand and seal this 30 May, 1799. 

Attest: Horace Binney. [seal] 

J. B. Wallace. 

The history of this note is now wholly lost, and one is 
eft to conjecture the circumstances under which it was made, 
vhat could have been the unexpressed consideration, and 
whether the note was ever presented for payment. One thing 
)nly is certain, — that the fee, when it came, was not a large 
me. 

Closely as Mr. Binney pursued his law studies, he did 
lot do so to the exclusion of the broad culture for which he 
lad striven at college, but kept up an extensive outside read- 
ng, both of the classics and of general literature. It was 
it this time, too, that he made the acquaintance of Judge 
Bushrod Washington, to whom the third circuit was assigned, 
rheir first meeting and the intimate friendship to which the 
judge soon admitted him are recorded in his sketch of the 
judge's life, written in 1858, as an expression of the writer's 
' love for his virtues and admiration for his remarkable 
judicial qualities." 

Mr. Binney's older sister, to whom he was devotedly 
attached, was with him in Philadelphia during most of his 



4 This was probably written about 1839 or 1840. A few years later, to Mr. 
Binney's intense regret, a coldness developed between him and Mr. Sergeant, 
continuing until the latter's death in 1852. 

31 



HORACE BINNEY [^Et. 19 

life as a law student, and his first experience (not the only 
unfruitful one) in sitting for a portrait was due to her re- 
quest for a miniature by a certain artist, eminent for " beau- 
tiful" pictures. 

" I told her my cash was low, and so put her off. In 
about a fortnight I went to the artist, and asked him to let 
me sit to him. He went on grandly, telling me I need not 
look till he told me. In the course of the sittings, he called 
in his wife, who looked at me, and looked at the picture, and 
exclaimed, ' What a charming likeness ! How striking !' A 
Frenchman, an acquaintance of the painter's, also came in, 
looked, and cried out, ' Mon dieu, quelle ressemblance! Elle 
est frappante. Vraiment le portrait est beau, sans etre 
flatte/ After some further sittings the painter told me I 
might look, and I did; but, it being my first portrait, I did 
not know what my likeness ought to look like, to myself of 
myself. I paid my money, and took the miniature away. 
Some days afterwards I said to my sister, ' You have several 
acquaintances in Boston, tell me which this is,' showing the 
miniature. She looked, and turned up her eyes to recall; 
looked again, and turned them up again; looked down and 
shut them, to think the better ; opened them and looked again 
at the miniature, paused a minute or two, and then said, 
' Upon my word I don't know. I don't think I ever saw 
him. Who is it? It's very handsome, but it is impossible I 
should know him.' I took my handkerchief from my pocket, 
moistened it with my lips, and rubbed the face out. ' My 
dear sister,' said I, ' the painter's an ass, and his wife and 

French friend are .' I then told her how I gave my 

money, and what I got for it." 5 

In the summer of 1799 Mr. Binney visited his relatives 



B Letter to Dr. F. Lieber, November 30, 1861. 
33 



1799] LIFE AS A LAW STUDENT 

in Watertown and Providence, and another outbreak of 
yellow fever in Philadelphia kept him away until November. 
To this period belong the earliest of his letters now extant, 
written to his sister there, to whom also he wrote quite fre- 
quently after her return to Watertown the next year. The 
letters are somewhat in the essay style then prevalent, give 
evidence of extensive reading, and, though not descriptive, 
they express in a lively way the writer's views on various 
topics, showing the cast of his mind at an interesting period 
of its development. Two letters to his classmate White, 
written soon after the return to Philadelphia, also throw some 
light upon Mr. Binney's habits and temperament at that 
time. 

Philada. December 8th, 1799. 
My dear White, — 

Did I not perfectly recollect that while at college you were 
remarked for great temperance of disposition, I should absolutely 
dread the consequences of this performance, after so glaring a viola- 
tion of promise. " I will write as soon as I arrive at Philadelphia," 
were my words which accompanied the last pressure of our hands at 
Craigie's gate. " Rest assured of a letter as soon as I get home," was 
my last address when in your chaise for Worcester; and yet, by 
heaven, I have delayed it for a month. Many a time have I chewed 
my thumb, for want of a better occupation, when I could have written 
a folio to you; and oftener, to my shame be it confessed, has my 
employment been worse than thumb-chewing, when it could have been 
substituted for letter-writing. You know what Solomon says, — there 
is a time for these things, — and I have become so perfect a methodist 
in the observance of times, whether by reading the Bible or Coke I 
cannot tell, that, as a world could not have bribed me to the perform- 
ance of my contract two days ago, so ten worlds should not bribe me 
to delay it two days longer. I confess my error, and turn from my 
ways. Randolph's confessions were not more precious, and his vin- 
dication was not half so just. . . . 

3 33 



HORACE BINNEY [JEt. 20 

In the political way I have nothing to amuse you; we are 
just getting into blast, but our ore is not yet running. Some weeks 
hence, by the time you get this letter and can have assured me that 
you are not offended by my long silence, we shall have cast something 
worthy your proof. The President in his speech, which I had the 
satisfaction to hear, has made no communication of novel fact, but 
has only commented on one or two circumstances which have occurred 
during the recess. The defects in the administration of justice by 
the courts of the United States are stated by lawyers to be numerous 
and aggravating ; he gave it in charge to Congress not to pass them 
over this session, the just punishment of crimes and the proper pro- 
tection of innocence depending on an alteration. This, and a Bank- 
rupt law again brought on the tapis, will afford exercise for the gown 
in the House, and speculation for it without; in this latter scheme 
I feel almost a personal interest, having suffered hitherto by the egre- 
gious looseness of the Pennsylvania system. I fear, however, it may 
be placed, where all those who oppose it should lie, under the table. 

As to poetry, history, mathematics, logick, and ethics, I know 
them only in connection with law; the two last are, to be sure, the 
basis and superstructure, and I ought to know them well, good law 
being built on morality, and reared into system' by deduction ; but 
the three others, except so much as I meet of the one in Coke upon 
Littleton, and of the second in Pickering's statute book, I have 
greeted to no amount since I left college. » 

As to friendship for you, if my law knowledge were commen- 
surate with it, there would not be a sounder lawyer or a better friend 
on the continent than 

H. BlNNEY. 

The interest which, as this letter shows, Mr. Binney took 
in the proceedings of Congress was not unnatural. The then 
House of Representatives, as he afterwards wrote, " was 
perhaps never exceeded, in the number of its accomplished 
debaters, or in the spirit with which they contended for the 
prize of public approbation. It was the last which convened 

34 



1800] LIFE AS A LAW STUDENT 

in this city, and furnished a continual banquet to such as had 
the taste to relish the encounter of minds of the first order, 
stimulated to their highest efforts, and sustained by the 
mutual consciousness of patriotic motives." 6 The speech 
which probably impressed the young law-student most was 
Marshall's great defence of the act of the Executive in sur- 
rendering Jonathan Robbins to the British authorities (the 
first instance of extradition by the United States), for even 
seventy-five years later Mr. Binney alluded to it with enthu- 
siasm. 

Had Philadelphia remained the capital, greater famili- 
arity with public life might possibly have made Mr. Binney's 
views of it different from what they soon came to be; but 
with the removal of the seat of government his personal in- 
terest in its doings naturally declined, and public life lost for 
him whatever attraction it may once have had. 

The next letter seems to refer to some suggestion of 
White's as to a return to Cambridge for purposes of study. 

Philadelphia, Jan. 28, 1800. 
My dear Friend, — 

I hate apologies, and therefore will not say why I have not 
answered you ere this. Nothing, however, but necessity could keep 
me from doing that for which I procure so rich a return. This is a 
very strange world. I do not like it so well as I did three weeks ago, 
and therein consists its singularity. To-day I am in tune ; not one 
chord in my system that does not vibrate music. I could shake my 
enemy by the hand, and hope sincerely that he was well. The second 
day it is not so fair. There is a fog ; some of my strings fall ; and, 
take me all together, I am out of tune. Still, if you touch a note at 
a time it is not absolute discord ; it gives a thin simple sound that is 
neither one thing nor another. " The third day comes a frost." What 



Eulogy on Chief Justice Marshall, p. 51. 
35 



HORACE BINNEY [JEt. 20 

had sunk a little in the damp of yesterday is brought up ; what was 
sufficiently high before, cracks. I am so thoroughly strained that 
touch me and I give way. No finger so delicate as to get aught but 
discord. I pass my friend in the street, or, like the Levite, go on the 
other side. In fact, I have been troubled with the spleen, — a long 
fit, not over yet, which you will learn before I get to the end of my 
story. The fault then, say you, is in the man, not in the world ; but 
then the world makes the man. It has made me feel like a fool for 
three weeks, and therefore I do not like it so well as I did three weeks 
ago. Q. E. D. 

You opened a fountain of feeling by your letter which for 
two years and a half I have been endeavouring to choak. When I 
left college it was with regret tempered by hope. I looked on my 
habits with affection. They had been reared in a situation which, 
compared with the great world, was a solitude. They had incor- 
porated with themselves some feelings which were to a great degree 
ascetic; and when I looked forward to the outrage which they must 
necessarily receive in the intercourse of dissipated society, honestly 
I confess to you 'twas with sorrow. Ambition, however, with all its 
combined power, knew how to weave a spell that could lull this sorrow. 
Its eye was fixed on fame, or something which had its features, conse- 
quence in the world; and between this fame, this consequence, and 
the otium cum dig. of my former life, I was not slow to make a pref- 
erence. When the choice was made, I considered it a duty to controul 
every sentiment that could unsettle it, and altho' they oftentimes 
would arise, yet it was a kind of Northampton insurrection, that fell 
at the appearance of its enemy. Since my probation thus far, I 
have been inclined to think my decision was just; but even when 
pleased with the present, memory can still sigh at the past, and wish 
that its joys could have been consistently prolonged. When I have 
the spleen too, — as I have said before, it is sometimes my companion, 
— these lost scenes have their brightest colours; they derive addi- 
tional beauty from the distance, and in spite of myself do not unfre- 
quently raise a wish, a kind of half-formed determination to see them 
actually once more. With such dispositions, then, it is not surprizing 

36 



1800] LIFE AS A LAW STUDENT 

that your letter had great weight. I allowed it to carry me with it 
every length, until, to use a sailor phrase, I was " brought up by my 
cables." My cables are reason and prudence ; by the one I was taught 
my incapacity to fill the office; by the other, that if I once entered 
it, I might not be able to leave it in good season. Believe me, my 
dear White, I can sufficiently estimate the advantage that would be 
derived by a recluse station for the next two or three years, and 
especially by a renewed connection with you and with my worthy 
classmate Farrar. But my friends with me have formed my arrange- 
ments, and it will be well to observe them. I shall continue my official 
vassalage until the next summer, endeavour to gain admittance to our 
Philada. bar, and then make decisions anew; the direction or nature 
of which at present I do not see. If I am thrown to the eastward, let 
the means be what they may, I shall bless them ; and let it be at any 
less pleasant point of the compass, as a lawyer I shall conceive it an 
arrangement of heaven, and I must say, " Lord incline my heart to 
keep thy law." At all events I shall sally from Philada. during the 
dog days, and shall in all probability visit my friends in New Eng- 
land. I can then commune in person and in spirit with you; while 
I am there it is my general passover, a " feast of reason and a flow 
of soul." Mention me in terms of very respectful esteem to my friends 
J. Bartlett and Farrar, and believe me most truly 

Your sincere friend, 

H. BlNNEY. 

The uncertainty about his future place of residence is 
also alluded to in a letter to John Pickering, of about the 
same date, but does not seem to have lasted long, for Mr. 
Binney opened an office in Philadelphia almost immediately 
after his admission to the bar, which took place in March, 
1800. " No attention," he wrote, " was paid at that time to 
the qualification of age, or, indeed, any other. One of my 
examiners, I recollect, did not know what was the general 
issue in an action of trover, and he knew about as much of 
law in general." 

37 



HORACE BINNEY [^Et. 20 

III 

FIRST YEARS AT THE BAR— MARRIAGE 
1800-1807 

A^ the time I thus came to the bar," wrote Mr. Binney, 
" the eminent men of the profession were Ed- 
ward Tilghman, William Lewis, Jared Ingersoll, 
William Rawle, William Tilghman, and Alexander James 
Dallas. They then engrossed the whole important business 
of the city, and the young men of the bar were none the 
worse off for growing up under them, though they had to 
grow up in the shade. I thought the apprenticeship both hard 
and long. Now that I look back upon it, it seems to have 
been short. 

" The Supreme Court then consisted of Shippen, chief 
justice; Yeates, Smith, and Brackenridge, justices. The 
chief justice was a gentleman of the old school, of benign 
temper, of good learning in the law, and of an uncommon 
mass of it in regard to what is called the practice ; but either 
his natural temperament, or his advanced age when he came 
to that office in 1799, made him rather too easy and accom- 
modating for the requisite despatch of business. He wanted 
the love of command, or the faculty of efficient superintend- 
ence and control, necessary to the presiding officer of such 
a court. He inclined to let things take the course which 
others gave to them, if it was not obviously wrong. Yeates 
was a very good lawyer, and a first-rate Pennsylvania lawyer ; 
that is to say, he knew better than any on the bench or at 
the bar what had been deemed to be the law in Pennsylvania. 
He walked, however, by what has been called the ' balustrade 

33 



1800] FIRST YEARS AT THE BAR 

of cases.' He was a great collector, a voluminous common- 
placer before modern indexes had saved that labour and 
destroyed all the fruits of it in the bud; a careful observer, 
a deferential follower of all that had been decided; but by 
the force of his own mind he was in the habit of doing little, 
and perhaps unjustly was thought unable to do much. If 
you gave him a case you had him, unless he could give you 
as good or better the other way. He was also kind and 
courteous, though without the refinement of manners which 
belonged to Shippen. Smith was defectively educated in 
the law, but by great industry had amassed a considerable 
knowledge of it. He was, like Yeates, a case lawyer, in- 
ferior, however, to him in the extent of his learning, and even 
less inclined to leave for a moment the support of adjudged 
cases for that of principle, — a good fault in moderation, but 
a gross one in excess. He was rough and bearish in his 
manners, uncouth in his person and address, and was in- 
capable of raising the skin by a reproof without making a 
gash. But he was a truly honest man, as far as his preju- 
dices, which were probably unknown to himself, would per- 
mit, and under that shaggy coat there was a kind and warm 
heart. He had been a deputy surveyor, and from this per- 
haps got the habit of always moving in a right line, — that is, 
the shortest line to his point, — and this contrasted broadly 
with the waving lines of the chief justice and Mr. Yeates, 
though, if he had had more knowledge of law and the gen- 
eral affairs of men, his disposition in this respect would have 
been best for the bench and the public. His notions of cere- 
mony were very strange, and with his utter inability to dress, 
or make a bow, or to do anything else like other people, made 
him in some situations irresistible. Mr. Rawle upon one 
occasion invited some of the bench and bar to dine with him 
at Harley, his summer residence near the Falls of Schuylkill, 

39 



HORACE BINNEY [Mt. 20 

and I was one of the number. It was a day in July, exces- 
sively hot, and the Ridge Road dusty to suffocation. I went 
with some of my young friends in a hackney coach, and we 
overtook Judge Smith on the road. He was on horseback, 
in enormous boots that came above his knees like a fisher- 
man's, a cocked hat exposing his whole face to the fiery sun, 
and a full cloth dress which had been black probably when 
he set out, but when we saw him was most dirty drab. Some 
fifteen minutes after our arrival he came into the saloon 
where the company had assembled. His hat was then in hand, 
but on his head was a mass of paste made by the powder and 
pomatum, a part of which had run down in white streams 
upon his face, as red in all the unplastered parts as a boiled 
lobster, and his immense boots and spurs, broad-skirted coat, 
and the rest of the appearance I have described, made him 
the most extraordinary figure for a summer dinner that I 
have ever seen; but he did not appear to think that he was 
otherwise than he ought to be for the honour of his host, or 
for his own comfort. To this person I owe more real civility 
and kindness, both at the bar and elsewhere, than to any other 
judge of the court until the time of William Tilghman. I 
know, moreover, from the representation of one who knew 
him better than I did, that he was susceptible of the noblest 
emotions of generosity and benevolence. 

" Brackenridge's appointment was the greatest legal 
blunder that Governor McKean ever made. He despised 
the law, because he was utterly ignorant of it, and affected 
to value himself solely upon his genius and taste for litera- 
ture, both of which were less valued by every one else. He 
once said to me, as I was standing by his chair on the bench, 
' Talk of your Cokes and Littletons, I had rather have one 
spark of the ethereal fire of Milton than all the learning 
of all the Cokes and Littletons that ever lived.' The mis- 

40 



1800] FIRST YEARS AT THE BAR 

fortune of the bench was that he had not a grain of the learn- 
ing that he undervalued, and that his fire, such as it was, was 
not ethereal. He hated Judge Yeates to absolute loathing. 
If Chief Justice Tilghman had not sat between them, I think 
that Brackenridge would sometimes, at a later period of his 
life, have spit in Yeates's face, from mere detestation. Yet 
this was but a proof of his own brutality, for Yeates was 
vastly his superior in everything that deserves praise among 
men, and never, that I heard of, gave him any cause of 
offence. It is not certain that Brackenridge was at all 
times sane, and he would have been just as good a judge as 
he was if he had been crazy outright. 

" I once saw him charge a jury with his coat and jacket 
off, standing in his bare feet, with his boots beside him, for 
he had no stockings at that time ; and in this cause, in which 
I was of counsel, and his charge was in favour of my client, 
who succeeded, I saw what satisfied me that his honesty as a 
judge was no greater than his learning. 

" The Common Pleas at this time was under the presi- 
dency of John D. Coxe, and the only lawyer in it. He was 
a sound lawyer and a very honest man, a little too much 
disturbed by his doubts and his talent for making distinc- 
tions, but on the whole very safe, very patient, and very well 
tempered. I could tell when a doubt had seized him, by the 
manner in which he pulled one of his eyebrows, — as if he 
could disentangle the web by straightening the hairs. 

" These were the men before whom I had to make my 
debut; and though for some years I had little to do before 
them, I was so kindly treated by them in all I had to do, that 
it is quite agreeable to me thus to have recalled them, and I 
believe without a feeling of resentment against the worst of 
them. For six years after my admission my porridge would 
have been very insipid if I had had to buy my salt with what 

41 



HORACE BINNEY [JEt. 20 

I had made at the bar. My employment consisted mainly 
in waiting upon the courts, and thus professing my readiness 
for what might turn up ; and I have often recommended this 
to young men as better than remaining all the time in their 
offices. If attentive, they will learn as much in court as they 
can in their offices during the same hours, and it will be of 
more use to them as regards the art of managing causes. 
There are many matters in the law, moreover, that cannot be 
learned anywhere else." 

It was when he was attending court, in accordance with 
this practice, in April, 1800, that Mr. Binney witnessed Wil- 
liam Lewis's dramatic protest against Judge Chase's course 
in announcing his opinion of the law in the case of John 
Fries, the Northampton insurgent, before the jury was im- 
panelled. One can well imagine the thrill of excitement with 
which the young lawyer heard Lewis's solemn declaration of 
his intention to withdraw from a case in which the law had 
been prejudged, and the rejoinder that then, with God's help, 
the court would be the prisoner's counsel, and would see that 
he had a fair trial. 1 

This same habit of attending court led to the acquaint- 
ance with Gilbert Stuart, who in 1800 was prosecuting an 
injunction against the sale of Chinese copies of Stuart's 
Washington, which some one had brought from Canton. 

" I was sedulous in my attendance on the courts, and here 
I became acquainted with Stuart. He came frequently to 
my office, which was in Front Street. I was always enter- 
tained by his conversation. I endeavoured to enter into his 
peculiar vein, and show him that I relished his wit and char- 
acter. So he took snuff, jested, punned, and satirized to the 
full freedom of his bent. ' Binney,' he said to one of my 



Leaders of the Old Bar, p. 34. 
42 



1800] FIRST YEARS AT THE BAR 

friends, ' has the length of my foot better than any one I 
know of.' 

" When [my sister] requested me to give her [a por- 
trait], I made an appointment with Stuart, and called to give 
my first sitting. He had his panel ready (for the picture is 
painted on a board) , and I said, ' Now, how do you wish me 
to sit? Must I be grave? Must I look at you?' ' No,' said 
Stuart, ' sit just as you like; look whichever way you choose; 
talk, laugh, move about, walk around the room, if you please.' 
So, without more thought of the picture on my part, Stuart 
led off in one of his merriest veins, and the time passed 
pleasantly in jocose and amusing talk. At the end of an hour 
I rose to go, and, looking at the portrait, I saw that the head 
was as perfectly done as it is at this moment, with the excep- 
tion of the eyes, which were blank. I gave one more sitting 
of an hour, and in the course of it Stuart said, ' Now, look 
at me one moment.' I did so. Stuart put in the eyes by a 
couple of touches of the pencil, and the head was perfect. I 
gave no more sittings. 

" When the picture was sent home it was much admired; 

but Mr. T M observed that the painter had put the 

buttons of the coat on the wrong side. Some time after this 
Stuart sent for the picture, to do some little matter of finish 
which had been left, and, to put an end to foolish cavil, I 
determined to tell him of M.'s criticism, but how to do it with- 
out offending him was the question. The conversation took a 
turn upon the excessive attention which some minds pay to 
the minutiae of costume, etc. This gave the opportunity de- 
sired. ' By the way,' said I, ' do you know that somebody has 
remarked that you have put the buttons on the wrong side 
of that coat?' ' Have I?' said Stuart. ' Well, thank God! 
I am no tailor.' He immediately took his pencil and with a 
stroke drew the lapel to the collar of the coat which is seen 

43 



HORACE BINNEY [Mt. 20-23 

there at present. ' Now,' said Stuart, ' it is a double-breasted 
coat and is all right, only the buttons on the other side not 
being seen.' ' Ha !' said I, ' you are the prince of tailors, 
worthy to be master of the merchant tailors' guild.' 

" Stuart had all forms in his mind, and he painted hands 
and other details from an image in his thoughts, not requiring 
an original model before him. There was no sitting for that 
big law book that, in the picture, I am holding. The coat was 
entirely Stuart's device. I never wore one of that colour (a 
near approach to a claret colour) . He thought it would suit 
the complexion. 

" On the day that I was sitting to him the second time 
I said to Stuart, ' What do you consider the most character- 
istic feature of the face? You have already shown me that 
the eyes are not; and we know from sculpture, in which the 
eyes are wanting, the same thing.' Stuart just pressed the 
end of his pencil against the tip of his nose, distorting it 
oddly. ' Ah, I see, I see,' said I." 2 

At that time Mr. Binney and several of his friends lived 
at Mrs. Smith's boarding-house, a wedge-shaped house (an 
unusual structure in rectangular Philadelphia) at the corner 
of Walnut and Dock Streets. Professor Silliman, the cele- 
brated chemist, has left a record of their life there as he saw 
it in 1802 and 1803. 

" This house attracted a select class of gentlemen. The 
Connecticut members of Congress resorted to it, I believe, 
while the government was in Philadelphia; and after its 
removal, as they were passing to and from Washington, it 
was a temporary resting-place. Other gentlemen of intelli- 
gence were among its inmates, and several of them, being 
men of great promise, were then rising into the early stages 



Life and Works of Gilbert Stuart, p. 139. 
44 



1800-03] FIRST YEARS AT THE BAR 

of that eminence which they attained in subsequent years. 
Among them were Horace Binney, Charles Chauncey, Elihu 
Chauncey, Robert Hare, John Wallace and his brother, and 
as frequent visitors John Sergeant and George Vaux. There 
were occasionally other gentlemen, but those I have men- 
tioned were our stars. . . . Enos Bronson, of Connecticut, 
and Yale College, was also of our number. He edited the 
United States Gazette with much talent. 

" The gentlemen whom I have mentioned, with their 
friends and visitors that were attracted by them to the house, 
formed a brilliant circle of high conversational powers. They 
were educated men, of elevated position in society, and their 
manners were in harmony with their training. Rarely in my 
progress in life have I met with a circle of gentlemen who 
surpassed them in courteous manners, in brilliant intelligence, 
sparkling sallies of wit and pleasantry, and cordial greeting 
both among themselves and with friends and strangers who 
were occasionally introduced." 

The style of living differed somewhat from what Silli- 
man was used to in Connecticut, for he went on to say, " Mrs. 
Smith, a high-spirited and efficient woman, was liberal almost 
to a fault, and furnished her table even luxuriously. Our 
habits were, indeed, in other respects far from those of tee- 
totalers. No person of that description was in our circle. On 
the contrary, agreeably to the custom which prevailed in the 
boarding-houses of our cities half a century ago, every gen- 
tleman furnished himself with a decanter of wine, usually a 
metallic or other label being attached to the neck, and bearing 
the name of the owner. Healths were drunk, especially if 
stranger guests were present, and a glass or two was not con- 
sidered excessive, — sometimes two or three, according to cir- 
cumstances. Porter or other strong beer was used at table as 
a beverage. As Robert Hare was a brewer of porter and 

45 



HORACE BINNEY [^Et. 20-24 

was one of our number, his porter was in high request; and, 
indeed, it was of an excellent quality. I do not remember 
any water-drinker at our table or in our house, for total ab- 
stinence was not thought of, except, perhaps, by some wise 
and far-seeing Franklin." 3 

An incident of Mr. Binney's life about this period, re- 
called in his letters, was his meeting Humboldt when the 
latter visited Philadelphia in 1804. 

" I cannot forget an evening when the late Dr. Benjamin 
Rush, then my neighbour, asked me, then quite a young man, 
to join two or three of his friends, to meet Von Humboldt 
and General Miranda at his temperate supper-table. I can 
never forget the occasion, and I still retain parts of the 
interesting remarks of Von Humboldt, in his replies to Dr. 
Rush's queries. The conversation was principally between 
the two. I was altogether a listener. Dr. Rush's queries gen- 
erally were directed to points connected with his own profes- 
sion, the character and cure of diseases among the natives 
(aboriginals) of certain parts of South America which Hum- 
boldt had explored, the differences between the level and 
mountain ranges, the phenomena of parturition (accouche- 
ment), gestation, etc., the general treatment of fevers, 
wounds, etc., and the peculiarities in physiology and pathol- 
ogy in certain particulars. I recollect also some interesting 
inquiries into the sources from which Von Humboldt had ob- 
tained the best instruments for philosophical experiment or 
observation on his travels, — thermometers, barometers, meters 
of every kind, magnifiers, telescopic and microscopic, quad- 
rants, sextants, etc. I should say Dr. Rush pumped him 
thoroughly; but in truth there was no pumping about it. 
Von Humboldt seemed to be a great reservoir, high up above 



Life of Benjamin Silliman, M.D., LL.D., by George P. Fisher, vol. i. p. 98. 

46 



1800-04] FIRST YEARS AT THE BAR 

all, and the head so strong that as soon as the cock was turned, 
out came the answers in a full, gushing stream, as if it was so 
full of that matter that there could be room for nothing else. 
Yet it was the same on every question or remark that was put 
or made to him. His accent was very decided, but his utter- 
ances voluble and full. He charmed us immensely. I have 
often thought of it, since, as the first page of his Kosmos. 
Never at a loss. No question new to him. No remark that 
was not enlarged or improved by him. I carried home a 
much larger store from him than from any one I have listened 
to for three hours. I never saw him afterwards, but this 
soiree has given zest to all that I have heard of him or read 
in his works since." 4 

On March 13, 1802, the Law Library Association of 
Philadelphia was founded, which twenty-five years later be- 
came the present Law Association. Mr. Binney was one of 
the seventy -two signers of the original articles of association, 
and bore his share of the practical work of the society. In 
the same year, in right of descent, he qualified as a member 
of the Society of the Cincinnati. 

Shortly before the Harvard Commencement of 1800, 
when, according to the custom of the day (and which pre- 
vailed for about seventy years longer) all the graduates of 
three years standing received the degree of M.A. without 
further examination. President Kirkland offered Mr. Bin- 
ney the Master's Oration, in recognition of his having at- 
tained at graduation a rank which would under ordinary 
circumstances have entitled him to the Valedictory; but he 
declined the honour, finding it impracticable to leave Phila- 
delphia just then. His decision was probably due to the 
feeling that having undertaken to seek an opening at the 
bar in Philadelphia, he could not afford to be absent at all, 

* Letter to Dr. F. Lieber, January 26, 1860. 

47 






HORACE BINNEY [JEt. 23-24 

even for a short time. This certainly was his view a year 
later, when he wrote: " Absolute business does not chain me 
to Philadelphia, 'tis true, and I might leave without material 
detriment at the moment, but a young man's passage here 
is uphill. I have very many before, and some few behind 
me, but this latter number must not be diminished. They 
will take my place if I run to gather flowers on the moun- 
tain's side, or rest one moment from my upward path." 

Again, in the summer of 1803, he wrote : " My little busi- 
ness is not to be seriously deranged by a short absence, it is 
true ; but in September we have a term of three weeks during 
which I am chained to the desk as reporter, and in October 
for the Circuit Court I am engaged in two causes, one of vast 
importance, which in all probability will be tried." 

This extract shows that Mr. Binney had some experience 
in reporting before he became reporter to the Supreme Court 
of the State in 1807. The cause which was " of vast impor- 
tance" in the eyes of the enthusiastic young lawyer was ap- 
parently postponed, and he eventually even found some good 
reason for a visit to New England in October, 1803. The 
reluctance to leave Philadelphia may have been partly due to 
the presence of Miss Elizabeth Cox (the youngest daughter 
of Colonel John Cox, of Bloomsbury Court, near Trenton, 
New Jersey, an officer of distinction, who had died in 1793), 
whose name is mentioned in the same letter, and to whom he 
must, about that time, have become engaged. They were 
married on April 3, 1804, and their devoted attachment to 
each other remained unclouded throughout a married life of 
more than sixty years. 

Very shortly after his marriage the case of Perry vs. 
Crammond, 5 apparently the case " of vast importance," was 



1 Wash. C. C, 100. 

48 



1803-04] FIRST YEARS AT THE BAR 

tried before Judge Washington. Mr. Binney was associated 
with Messrs. Ingersoll and Lewis for the plaintiff, Messrs. 
Rawle and Edward Tilghman being against them. As might 
be judged from this array of counsel, the suit involved some 
knotty questions of commercial law, but the verdict was for 
the defendant, a result which must have made the young 
lawyer's future look no less doubtful than before. Even 
about two years later the prospect was still so poor for the 
junior bar that some of them held a meeting at Mr. Binney's 
office, when it was proposed to abandon the law altogether, 
and form a settlement in the woods of Luzerne County. The 
intention may not have been very seriously entertained, but 
it showed that the young men of that day were heartily de- 
sirous of a strenuous life, as well as in friendly sympathy 
with each other. 

In spite of his lack of opportunity, for several years, 
to distinguish himself at the bar, he had undoubtedly won 
a reputation for ability and high character, for in 1806, 
when only twenty-six years old, he was chosen a trustee of 
the University of Pennsylvania, and secretary of the Penn- 
sylvania Society of the Cincinnati. He held the latter office 
until 1820, and the former until a later date. 

By the time Horace Binney attained his majority, on the 
fourth day of the nineteenth century, his political views were 
fully formed, and while they may have become tempered by 
the riper judgment of increasing years, deepened, intensified 
perhaps at times, they never substantially changed. He was 
from the first a Federalist, and he never pretended to belong 
to any other party. 6 A strong, stable, and orderly govern- 
ment he thought absolutely essential to the preservation of 



8 In his third pamphlet on the Habeas Corpus, written early in 1865, he 
said, " I do not assume the name of any living party, but that of the country." 

4 49 



HORACE BINNEY \_Mt. 21 

liberty, whose worst enemy was unreasoning popular preju- 
dice, especially when manifested as party spirit. He held 
that the Constitution was a surrender by the people of a 
definite portion of their power, the extent of the grant being 
gathered from a fair interpretation of the language em- 
ployed, and from the objects for which the Union existed, 
and the grant itself one which should be maintained even 
against all illegal attempts of the people to resume the power 
thus granted. Under the Constitution, moreover, the United 
States constituted a nation, one as to its own people, and 
separate as to all other nations. Fidelity, obedience, and 
submission to the constitution and laws of a State were re- 
quired of its citizens; but allegiance, in the proper sense of 
the term, was due to the nation alone. 

The Federal party was, in his judgment, the one party 
which was thoroughly faithful to, and conservative of, the 
Constitution, upholding it in the spirit in which it had been 
framed and adopted, preventing any one of the departments 
of the government from usurping the functions of the others, 
and maintaining the supremacy of the national government, 
within its constitutional sphere, over those of the several 
States. Great, therefore, was his regret, and serious his fore- 
bodings for the future, when the returns of the election of 
1800, at first favourable to the Federalists, finally showed a 
majority against them. It was small consolation that the 
equality of Jefferson and Burr made them competitors for 
the support of the Federalist electors, and while Mr. Binney 
must have approved Hamilton's course in securing that sup- 
port for Jefferson, as the less dangerous of the two, his own 
feeling towards Jefferson, and all distinctly Jeffersonian 
views or doctrines, was never anything but abhorrence. 

The fact that Mr. Binney became a voter just after the 
Federal party began to lose its hold on the people, so that 

50 



1801] FIRST YEARS AT THE BAR 

during the first years of his manhood his vote was always 
cast in an attempt to stem the ever-increasing and finally 
overwhelming Democratic tide, never for a moment weak- 
ened his own federalism. Very possibly it may have served 
to intensify it. No man was less of a trimmer or more thor- 
oughly sincere in his political views, which he had not taken 
up lightly or in haste, but seriously, upon reflection, giving 
to political doctrines and principles the same careful study 
which he gave to those of the law. The adverse decision of 
a court, if he believed it really unsound, never controlled his 
judgment, and for the adverse decision of a popular ma- 
jority he had still less regard. To him, as a young man, 
a majority, except in some local contests, always meant a 
majority on the wrong side, and " the worship of the god 
majority," as he expressed it, was at all times peculiarly 
distasteful to him. 

His admiration for Hamilton dated, as already noticed, 
from boyhood ; by the time he reached manhood it had only 
strengthened ; and it never, throughout his long life, suffered 
the slightest diminution. Washington he held to be " above 
exception or comparison, as the man for the day and the 
country; but as a statesman no one equalled [Hamilton] in 
his work for the Constitution and the rising government." 7 
Adams, on the other hand, he held to be mainly responsible 



' Letter to J. C. Hamilton, December 29, 1859. 

" I think, and have for many years thought, that Hamilton was and remains 
the first statesman in our country, perhaps not surpassed anywhere; of extraor- 
dinary maturity in very early life, of singular finish in his accomplishments for 
such a post either in war or peace, and as honest as Pericles; having some, though 
not all, his many sides. What would I not have given to have had him among us 
before and during our great troubles, and most particularly for the regulation 
of our finances, in which department he was facile princeps? I ought to say that 
with as many opportunities as Pericles had to enrich himself, he died as poor." 
(Letter to Sir J. T. Coleridge, August 25, 1864.) 

51 



HORACE BINNEY [Mt. 21 

for the downfall of the Federal party. He conceded the 
latter's perfect integrity, and his immense services during the 
Revolution, but condemned that vanity and jealousy which 
made him, as President, both weak and dangerous, and finally 
precipitated his fall. This opinion Mr. Binney formed at the 
time, " as early as the first year of this century." 8 

It is difficult for the men of the twentieth century to 
understand the intensity of the distrust and dislike, even 
hatred, with which perfectly disinterested men viewed the 
doctrines of their political opponents a hundred years ago. 
In 1800 the government under the Constitution was still an 
experiment, the future of which was far from certain. The 
Democrats sincerely believed that the Constitution was in- 
tended by the Federalists to pave the way for the establish- 
ment of an aristocracy, if not a monarchy, and Hamilton, 
who had striven and fought for popular liberty with all the 
energy of his strong character, was, ridiculous as it may seem, 
execrated as a monarchist. To the mind of the Federalists, 
on the other hand, Jefferson's State rights doctrines directly 
attacked the bond of federal union, and tended to a reversion 
to the deplorably weak government of the confederation, if 
not to utter disintegration, while his excessive laudation of 
the people appeared to make all public officers the mere 
puppets of an unreasoning mob. 

Federalist dislike of Jefferson and his followers was in- 
tensified by his sympathy with the French Revolution, even 
at the time of its excesses, and by his apparent wish to dis- 
seminate in the United States the same doctrines which had 
inflamed the mind of France. The conditions of the two 
countries were, it is true, utterly different, but the guillotine 
had not been employed only against oppressors; many of 



'Letter to J. W. Wallace, September 25, 1871. 

52 



1801] FIRST YEARS AT THE BAR 

the truest, most liberal-minded patriots in France had been 
dragged to the scaffold; and the Federalists felt that the 
doctrines which masqueraded under the false title of " Lib- 
erty, Equality, and Fraternity" were essentially pernicious 
and were not to be endured in any country. 

Another factor was Jefferson's disloyalty to Washing- 
ton, a course all the more condemned by the Federalists be- 
cause of its having been to some extent concealed. The man 
who, as a Cabinet officer, covertly fomented attacks upon his 
own chief was in their eyes little better than a traitor. His 
course in this respect, and his French leanings also, may have 
been exaggerated by his political opponents, but whether 
wholly justifiable or not, the hostility to him seems to have 
been something without a parallel at the present day. 

While Mr. Binney's mind was essentially non-partisan, it 
could not help being affected by the spirit of the day, and 
to that spirit may fairly be traced a part, at least, of his 
abhorrence of everything Jeffersonian. Jefferson, he once 
wrote, " was the devil in our Paradise; with his nature and 
French revolutionary training, he could not help being so." 
After the Federalist downfall no administration commanded 
Mr. Binney's thorough confidence, and the more any party or 
any administration was infected with the Jeffersonian heresy, 
the more he distrusted it. Though ready to concede that 
" God fulfils himself in many ways," he believed thoroughly 
in " the old order" of Federalism, and would scarcely have 
admitted that that particular " good custom" could under any 
conceivable circumstances " corrupt the world." Had he 
lived until the elections of 1884-1892, he would unquestion- 
ably have supported Mr. Cleveland, simply because his own 
views were much more nearly represented by Cleveland than 
by either Blaine or Harrison; but he would have held that 
Cleveland's ideal of a democracy " untempted by clamour, 

53 



HORACE BINNEY [Mt. 26-27 

unmoved by the gusts of popular passion," involved a con- 
tradiction in terms, democracy being to him the very exponent 
of clamour and popular passion. 

Like his legal preceptor, Jared Ingersoll, Mr. Binney 
" had, at no time of his life, a warm predilection for politics." 
Mr. Ingersoll's influence and example may possibly have had 
something to do with this, and " the great subversion of 
1801" was naturally disheartening Jo a convinced Federal- 
ist. Still, he had no wish to evade any of the duties of a 
citizen, and in 1806 he became a candidate for the Legisla- 
ture on what would now be called a " fusion ticket" of Fed- 
eralists and Independent Democrats, or, as their opponents 
called them, Quids. 9 His friends Wallace and Chauncey 
seem to have been active in bringing about the nomination, 
and a letter of the latter states clearly the conditions upon 
which Mr. Binney would consent to serve. " Your advice 
to Binney as to duty, and his own judgment, are perfectly 
right. He must go like a gentleman, and with true men, or 
you and I know perfectly well that he will not go at all." 

With the reckless disregard of truth shown by the " yel- 
low journals" of every age, Duane's Aurora charged Mr. 
Binney with being " an apostate Democrat of 1797." 10 In 
1797 he was but seventeen years old, and in point of fact did 
not return to Philadelphia until after the election. More- 
over, he had apparently, even at that early age, adopted the 
Federalist principles, from which he never swerved. The 
utter falsity of Duane's slur was probably well understood, 



• Under John Randolph's leadership these Independents were recognized as 
an element distinct from the regular Jeffersonian organization, a sort of third 
party, a tertium quid. Hence the name. 

The full title of the then Democratic party was Democratic Republican, 
and the members were called Republicans and Democrats indifferently. 

"Aurora, September 10, 1806. 

54 



JL806-07] FIRST YEARS AT THE BAR 

I for among the five successful candidates Mr. Binney stood 
lit the head of the poll, receiving 2056 votes. 11 

" Some of the occurrences in the Legislature while I was 
Ichere," wrote Mr. Binney, " were of considerable interest. 
I Chief Justice McKean, who had been carried into the office 
pf governor in 1799 upon the Shoulders of JefFersonian 
I Democracy, and had slashed away famously in his first days 
[ against Federalists-and apostate Whigs, was fain, at the end 
Df his second term, to rely upon them for his re-election ; and, 
with their since proverbial ductility, they united with a rem- 
nant of his former friends and did re-elect him. The Legis- 
lature, however, contained a majority of his alienated friends, 
who, having once been sweet, had become by fermentation 
the sourest of enemies, and they resorted to the customary 
methods of annoyance. His defence and the defence of his 
recent measures, against the opposition of Findlay, after- 
wards governor, and Dr. Leib, fell in the House of Repre- 
sentatives to Charles Smith (afterwards, but not till some 
years afterwards, Judge Smith, of Lancaster, a son-in-law of 
Judge Yeates) and myself. It was amusing enough — for 
both Smith and myself were then and ever afterwards Fed- 
eralists — not to be mistaken. We did our duty, however, not 
from love of McKean, but from scorn of his former politics ; 
and both of us were asked in debate by Dr. Leib whether the 
vacant slippers of a deceased judge were not in our view. I 
could say for myself, and can still say, that I never desired 
to walk in any other man's shoes than my own." 

One of the measures passed at this session was the arbi- 
tration law, which Mr. Binney opposed, having no confidence 
in schemes for making every man his own lawyer. This was 
probably the bill in regard to which the governor sent the 



True American, October 16, 1806. 
55 



HORACE BINNEY [Mt.27 

Secretary of the Commonwealth, Mr. Thompson, to confer 
with Mr. Binney and to say that he (the governor) thought 
it a foolish bill, but did not see any great objection to it. Mr. 
Binney replied that such a reason for signing the bill might 
satisfy some governors, but that he thought it would be too 
bad for one who would be recollected as a judge long after 
he was forgotten as a governor to countenance such a 
measure. 

A letter of March 13, 1807, to Mr. Wallace shows the 
keen interest which Mr. Binney took in the active work of 
the Legislature, in spite of his distaste for public life. 

I dreamt you were dead of a dysentery, and your letter joined 
issue with the dream, and non-suited it. . . . Although I am still 
raggy about the muscles and my throat as tender as my eye, I am so 
much my own man that I have had great satisfaction in speaking 
against the Address to the President, and upon principle, as all our 
side of the House say, getting the better of the addressers. I yes- 
terday took some pains to teach the President better manners than 
to lay out a road through Pennsylvania to the exclusive benefit of 
Chillicothe in Ohio and the State of Maryland, and we triumphed by 
60 over 21 ; we fixed the points thro' which it shall pass. Third 
reading of the bill this morning. [(In the margin.) This bill has 
just passed. Yeas, 80; nays, 1. Io Tri.] . . . 

What the fate of turnpikes will be I cannot tell; the resolu- 
tion was adopted and a committee appointed to bring in a bill, of 
which committee I am chairman, and shall draw the bill to-day. The 
bank I think will not go this session; and I have not the least right 
to be sanguine with respect to the success of the insurance companies. 
If they do not pass in ten days, then they are gone for the present 
session. 



56 



1807] ACTIVE PROFESSIONAL LIFE 



IV 

ACTIVE PROFESSIONAL LIFE 
1807-1815 

THE close of the legislative session of 1806-07 marked 
the beginning of Mr. Binney's active practice at 
the bar. Up to that time, he once wrote, " I con- 
tinued an unrewarded drudge," but after that " the door was 
opened wide to me at once, and I entered." Aside from what 
general reputation he had acquired as a member of the Legis- 
lature, his charge of certain memorials from the Chamber 
of Commerce, and one for the incorporation of the United 
States Insurance Company, had made his abilities known to 
merchants and underwriters. Perhaps also, to quote his own 
words, " the time had come when an industrious young man 
of fair character and capacity might generally expect to 
come in as a reaper, after having been a patient gleaner only 
for six or seven years." He was further aided by his Re- 
ports, begun in 1807 at the invitation * of Chief Justice 
Tilghman, who, when for a short time president of the Com- 
mon Pleas of Philadelphia, had suggested his reporting the 
decisions of that tribunal. Tilghman's translation to the 
Supreme Court gave wider scope for carrying out the plan, 
which, in its fulfilment, not only increased the reporter's 
reputation at the bar, but has given to the profession a series 

1 At that time, and until 1845, the work of the gentlemen who successively 
reported the decisions of the Supreme Court of Pennsylvania was an independent 
undertaking, like any other literary work. In 1845 the office of State Reporter 
was established, to be held for five years, and in 1878 a salary was attached to the 
office and the Reporter deprived of all interest in the sale of the books. 

57 



HORACE BINNEY [Mt. 27-28 

of volumes generally conceded to be unsurpassed of their 
kind. 2 The statements of the facts involved and the argu- 
ments presented, clear and concise, yet complete and emi- 
nently fair, form a proper introduction to the opinions with- 
out trenching on their province, while the faithful analyses 
show at a glance the reporter's thorough grasp of each case. 
To make the cases of value as precedents required, in his 
opinion, great care and accuracy in reporting the arguments 
of counsel, and he was wholly opposed to that school of 
reporting which either reduces them to a confused list of 
citations or omits them altogether. Careful, even elaborate, 
reporting was peculiarly desirable at that time, as even the 
English reports were comparatively few, and American 
authorities still more rare, so that every new decision was 
far more of an addition to the stock of precedents than is 
ordinarily now the case. Tilghman's carefully reasoned 
opinions, moreover (and for the first ten years or more of 
his chief -justiceship he delivered an opinion in every case 
but five ) , were well worth all the labour which the reporter 
expended upon the setting in which he offered them to the 
profession; and fortunately the condition of the law-book 
market assured a fairly remunerative compensation 3 for such 
work. The six volumes contain some cases decided before 



2 In McLaughlin vs. Scot (1 Binn., 61) it was held that arbitrators could 
allow costs, although the statute appeared to forbid such allowance where the 
judgment was for less than fifty pounds. This rather anomalous decision was 
referred to in Stuart vs. Harkins (3 Binn., 321), and Mr. Binney inserted two 
foot-notes in regard to what had taken place when the former decision was ren- 
dered. In Lewis vs. England (4 Binn., 5) the point came directly before the 
court, and McLaughlin vs. Scot was overruled ; but Tilghman, C. J., said, " From 
the known accuracy of the reporter, I make no doubt but that what fell from the 
court is faithfully set down." This is believed to be the only instance in which 
the accuracy of Mr. Binney's report of any case was questioned for a moment, if 
it was really questioned at all. Certainly the chief justice did not question it. 

3 About two thousand dollars a volume. 

58 



1807-08] ACTIVE PROFESSIONAL LIFE 

1807, and all the important decisions of the court down to 
September, 1814, when Mr. Binney's full employment at the 
bar left him no time for reporting according to the standard 
he approved. In 1808 he wrote, anonymously, the American 
notes to Kyd's treatise on Awards. 

Though the start had been fairly made, the race was still 
to be won. " For some years," he wrote, " my contemporaries 
and I had to work for our seniors, who were retained in all 
cases of importance. It was our duty to prepare the plead- 
ings and evidence, to put all in order for trial, in fine, to be 
fag, as the Eton boys term it, to the older classes. This did 
us no harm." 

Mr. Binney's first argument in the Supreme Court of 
Pennsylvania was in the spring of 1808, in an unimportant 
suit for damages for the removal of a fence, turning on the 
question of the conclusiveness of the regulator's lines. 4 He 
had won a verdict for the plaintiff at nisi prius against a 
rather adverse charge, but was unsuccessful on the motion 
for a new trial. His first important case was Gibson vs. 
Philadelphia Insurance Company, 5 decided on December 24, 

1808, though argued several months before. His connection 
with the cause is best stated in his own words. 

" More than fifty years ago Samuel W. Fisher, the presi- 
dent of the Philadelphia Insurance Company, came one 
morning into my small office, then having abundant room 
for all my visitors, and gave me a retainer to argue the case 
of Gibson against that company. Mr. Gibson, the plaintiff, 
who was a member of the bar, and my master in the law, Mr. 
Ingersoll, were to argue it against me. The question re- 
garded the proper mode of adjusting a particular average 



* Godshall vs. Marian, 1 Binn., 352. 
6 1 Binn., 405. 

59 



HORACE BINNEY [JEt. 28 

under a clause in a respondentia bond; and it was new and 
not without difficulty. It came before the court upon excep- 
tions to a report of award under the Act of 1803, made by 
Edward Tilghman, with the concurrence of another member 
of the bar, against the opinion of the third referee, who was 
also a member of the bar; and it turned altogether upon 
principles of commercial law. I examined the papers, and 
then said to Mr. Fisher, ' You are not going to leave me 
alone in this cause. You know who is against me.' ' I know 
all that,' he said, ' but I will not retain anybody else. Go on 
and make the best of it.' After the award was confirmed, I 
asked Mr. Fisher why he had been so short in refusing me 
a colleague. He replied that he had done as he had been told 
to do. Mr. Tilghman had told him to retain me, and had said, 
' Put it on his own shoulders and make him carry it. It will 
do him good.' The lesson may be good for others. The most 
cheering effect of it to myself was its giving me the assur- 
ance of the good will of such a man as Edward Tilghman." 6 
The sketch of Mr. Tilghman from which the above is 
taken breathes a spirit of lasting gratitude to him who thus 
launched the young lawyer into the current of professional 
activity. Gibson vs. Philadelphia Insurance Company was 
a most fortunate case to win a reputation on at that time, 
for insurance cases were probably never so numerous or im- 
portant as in Philadelphia from 1807 to 1817. That city was 
the first commercial port in the United States, and her in- 
surers were as active as her merchants. At the time of the 
Berlin decrees and the British orders in council, Philadelphia 
policies covered innumerable adventures at sea, leading to 
consequences which Mr. Binney thus described: " The stop- 
pings, seizures, takings, sequestrations, condemnations, all of 



• Leaders of the Old Bar, p. 70. 
60 



1808] ACTIVE PROFESSIONAL LIFE 

a novel kind, unlike anything that had previously occurred 
in the history of maritime commerce, — the consequence of 
new principles of national law, introduced offensively or de- 
fensively by the belligerent powers, — gave an unparalleled 
harvest to the bar of Philadelphia. No persons are bound to 
speak better of Bonaparte than the bar of this city. He was, 
it is true, a great buccaneer, and the British followed his ex- 
ample with great spirit and fidelity, but what distinguished 
him and his imitators from the pirates of former days was 
the felicitous manner in which he first, and they afterwards, 
resolved every piracy into some principle of the law of the 
nations, newly discovered or made necessary by new events; 
thus covering or attempting to cover the stolen property by 
the veil of the law. Had he stolen it and called it a theft, not 
a single lawsuit could have grown out of it. The under- 
writers must have paid, and have been ruined at once and 
outright. But he stole from neutrals and called it lawful 
prize ; and this led to such a crop of questions as nobody but 
Bonaparte was capable of sowing the seeds of. For while he 
did everything that was abominable, he always gave a reason, 
and sometimes a specious reason, for it, and kept the world 
of the law inquiring how one of his acts and his reasons for 
it bore upon the policy of insurance, until some new event 
occurred to make all that they had previously settled of little 
or no application. In many instances the insurance com- 
panies got off; in others, though they failed, it was after a 
protracted campaign, in which, contrary to campaigns in 
general, they acquired strength to bear their defeat. In the 
mean time, both in victory and defeat, and very much the 
same in both events, the lawyers had their reward." 

Mr. Binney had been chosen a director of the first United 
States Bank in January, 1808, an important trust for so 
young a man, and the next year he argued United States 

61 



HORACE BINNEY [iET. 29 

Bank vs. De Veaux, 7 his first case in the Supreme Court of 
the United States. From it he won " as much credit as a 
young man could gain in association with elder men," the 
point on which the case was gained (the right of a corpora- 
tion, composed of citizens of one State, to sue a citizen of 
another State in the Federal courts) being suggested and 
elaborated by him alone, before his senior, Mr. Ingersoll, was 
taken into the case. 

On the journey, by coach, to argue this case, the first 
night was spent at the Head of Elk, where, as often hap- 
pened at that day, several guests had beds in the same large 
room. Mr. William Lewis, who was an incessant smoker, 
was one of the room-mates, and after the last candle had been 
extinguished the cigar was seen alternately firing up from his 
pillow, " and disappearing in the darkness, like a revolving 
light on the coast." 8 

" It was upon this visit to Washington," wrote Mr. Bin- 
ney, " that I saw Mount Vernon, the former residence of 
General Washington. Judge Washington, his nephew and 
then proprietor of the estate, invited six or eight of the bench 
and bar to pass Sunday with him, and we went on the way 
to Alexandria on Saturday afternoon to pass the night. On 
Sunday the Judge's coach and four came for us, and, with 
great misgivings, six of us, and none of them very light, em- 
barked in it. The coach looked as if it might have been an 
heir-loom of the estate, antique, capacious, and shewy. A 
black coachman, with rather incomplete garments, a shabby 



7 5 Cranch, 6. Oddly enough, as Mr. Binney himself noticed, this case is 
referred to in Louisville R. R. Co. vs. Letson, 2 How. (U. S.), 497, as if overruled 
by that decision, which gave to a corporation, for the purpose of suit in the Fed- 
eral courts, the rights of a citizen of the State of its incorporation, irrespective 
of the actual citizenship of its members, an extension of the doctrine of the earlier 
case, but entirely consistent with it. 

8 Leaders of the Old Bar, p. 42. 

62 



1809] ACTIVE PROFESSIONAL LIFE 

hat, and his feet wrapped up in a piece of old green baize, 
held the reins of four of the most raw-boned and ill-groomed 
horses I ever sat behind; and the harness was unlike any- 
thing I had ever seen before, or have seen since, except per- 
haps in France, being part leather and part rope, the harness 
of the leaders and that of the wheel horses having less con- 
sanguinity than the horses themselves, looking as if it had 
been collected from different parts of Old Virginia. The 
morning was cold and the roads deep. We had not gone a 
mile of the way before it became obvious that the load was 
too much for the horses, and if they had been good, it would 
have been too much for the harness. Some of our company 
got out, and footed it to Alexandria for another outfit. Con- 
sidering that the judge was responsible for me where I was, 
I stuck to the coach, and the coach stuck to the mud ; and had 
it not been that the horses got very hungry and pulled desper- 
ately for the corn-crib at Mount Vernon, I might have stuck 
there much longer. By dint, however, of whipping, and 
above all a desperate appetite in our cavalry, we made out 
to arrive, after being passed on the road by our fellow- 
travellers, who had been refitted at Alexandria, and who 
greeted us en passant with a shout of laughter. The carca- 

jada came from David H and David B. Ogden. But a 

warmer welcome and a higher degree of comfort than were 
prepared for us at Mount Vernon it was impossible to have 
anywhere. I never passed a more delightful day and night 
than under the roof of General Washington and his nephew, 
the judge, who resembled his uncle in many things more than 
in his equipage. Judge Brockholst Livingston was of our 
party, a most pleasant and gentlemanly companion, particu- 
larly free and gay during our Saturday night at Alexandria, 

which that rogue David H said was accounted for by 

an enormous charge for gin, which I believe he prevailed 

63 



HORACE BINNEY [JEt. 30-31 

upon the landlord to put in the bill, and after it had served 
its purpose of a laugh, was rectified as a mistake." 

In each of the next two winters Mr. Binney again visited 
Washington, in the attempt to secure a renewal of the charter 
of the United States Bank, and became acquainted with 
many of the men who then figured in public life. " Such 
was the entire recklessness," he wrote, " of some of the lead- 
ing party men to the consequences of overthrowing the bank, 
that although the corporation was to die on the 4th of March, 
1811, and it was not known to them how the bank would hold 
to the property of the stockholders after that day, the com- 
mittee of the Senate, before which I appeared, would not 
recommend a day to be given to the bank to wind up its con- 
cerns or to collect its dues. Mr. Clay, who was one of the 
committee, told me that he was afraid of us — he would not 
give us an hour. He said it, it is true, with a smile ; but be- 
tween the smile of Mr. Clay 9 over the death-bed of the first 
bank and the frown of General Jackson over the death-bed 
of the second, the difference was a shadow only. 

" I have more than doubted whether Mr. Gallatin, to 
whom I had made known the intention of the directors to 
assign to trustees, notwithstanding he was an apparent friend 
to renewal, did not let the cat out of the bag, to increase the 
responsibility of Clinton, the Vice-President, by leaving the 
bank to its own measures. 

" I learned at Washington, in the winter of 1811, that 
the policy of the administration was to get a renewal, if they 
could do it without too much responsibility, and if they could 
not, to throw the responsibility of refusing it on George 
Clinton, who was Vice-President, and was feared as a future 



9 Some years later Mr. Clay changed his mind as to the usefulness of such 
an institution, and was for a time one of the counsel for the second United States 
Bank. 

64 



1810-11] ACTIVE PROFESSIONAL LIFE 

opponent of Mr. Madison. Worthington, of the Senate, was 
an intimate friend of Gallatin, and would be the last to vote 
upon the question. If the bill would be carried without his 
vote, he, it was said, was to vote for it; but if a chance should 
occur to make a tie, it was the design that he should make it. 
So it occurred, and so he voted. Clinton gave the casting 
vote against the renewal. The coincidence may have given 
rise to the story. The bank wound up its concerns so judi- 
ciously that the mischiefs of non-renewal were not felt till 
the litter of State banks that came in its place spread their 
paper over the country, and in three years after the whole 
broke. The same thing happened, and after less than the 
same interval, with the second bank." 

In July, 1808, Mr. Binney became a member of the 
the American Philosophical Society, as his father had been 
before him. In the autumn of 1810, and again a year later, 
he was elected to the Common Council of the city of Phila- 
delphia, where his associates chose him their president each 
term. His court practice continued to increase, and in 1811 
he won his second victory in the Supreme Court of the 
United States in King vs. Delaware Insurance Company, 10 
in which it was held that where an officer of a British man- 
of-war, being misinformed as to the effect of the Orders in 
Council, warned a ship's captain not to proceed to his destina- 
tion, and the captain abandoned the voyage without attempt- 
ing to verify the information, the underwriters were not 
liable for the consequent loss. 

In the same year he won the case of Munns vs. Dupont, 11 
in the Circuit Court, a leading authority on probable cause in 
an action for malicious prosecution. 



10 6 Cranch, 71. 

11 3 Wash. C. C, 31 ; 1 Am. Lead. Cas., 200. 
65 



HORACE BINNEY [JEt. 32 

In 1812 Mr. Binney's increasing income enabled him 
to build the house on the east side of Fourth Street, south 
of Walnut Street, which, with the one-story office adjoining, 
built soon after (and paid for out of the proceeds of the 
fifth volume of his reports) , he occupied until his death. He 
had already two children, — Mary, born February 27, 1805, 
and Horace, born January 21, 1809. By the time that his 
son was a year or two old, Mr. Binney had overcome whatever 
feeling against infant baptism he may have had, and was 
ready, moreover, to receive the same sacrament himself. He 
and his children were baptized together by Dr. Abercrombie, 
rector of the United Churches of Christ Church, St. Peter's, 
and St. James's, and he doubtless became a communicant 
very soon afterwards. 

Mr. Binney has left no record of his precise views in 
regard to the war with England, which broke out in 1812. 
He probably thought it a mistake in its inception, an error 
of judgment on the part of the administration, which could 
have been honourably avoided but for Madison's blind con- 
fidence in the supposed good will of Napoleon, and finally 
his yielding to the excited clamour of a certain element in 
Congress; but this view did not involve approval of the 
course of the New England Federalists in persistent opposi- 
tion to the war after it had once begun. In a letter written 
in 1863, in regard to the draft, he referred to the debates on 
the same point in 1814, as follows: 

New England got, as you have heard, exceedingly crusty, and 
was not unwilling, after Madison's second election, to put an end to 
the war, or the government, or to anything that first presented. The 
Monroe argument [on the draft] proceeded upon the Federal rule 
of construction, that the power to raise and support armies being 
given to Congress, all the ways of doing this that were reasonably 
necessary and proper were also given. The argument of the opposi- 

66 



1812] ACTIVE PROFESSIONAL LIFE 

tion was weak, and I think savoured of hatred to the war more than 
of the old Federal spirit. After Hamilton's death, indeed, the Federal 
party had not a name to live. 12 

Madison's renomination in 1812 was a defeat for the 
followers of Clinton, who thereupon sought the aid of the 
Federal party, which, although by itself a hopeless minority, 
was still strong enough to prove a valuable ally. In June, 
1812, an informal convention of Federalists met in New 
York to consider the proposition of the Clinton Democrats, 
and Mr. Binney attended as a delegate from Pennsylvania. 
Otis and others favoured coalition, urging the futility of a 
contest by the Federalists alone, and the advantage of a cam- 
paign which had some promise of success. Rufus King, on 
the other hand, argued that the Federal party could be held 
together only in support of its distinctive principles, which 
differed so radically from those of the Democratic that they 
would be compromised by an alliance with any faction of the 
latter, even one whose candidate claimed to be fairly conser- 
vative, and that the party would disintegrate in consequence. 
He held that the possession of office was not essential to the 
usefulness of the Federal party, which, even when out of 
office, could do good work in checking the excesses of extreme 
democracy, so that the only wise course was to stand for 
Federal principles exclusively, by which means alone could 
the party be maintained and its principles kept alive. King's 
advice was not followed, and his prophecy of the extinction 
of the Federal party was fulfilled, but his words sank deeply 
into Mr. Binney's mind and memory, for the view was one in 



12 Letter to Dr. Lieber, August 6, 1863. A letter to Mr. J. C. Hamilton in 
regard to the same affair says, " Any one who recollects this must say certainly 
General Hamilton must have been both dead and forgotten, or the debate would 
never have taken such ground in the hands of his friends of old." 

67 



HORACE BINNEY [^t. 32-35 

which he thoroughly coincided, both at the time and ever 
afterwards. He himself refused to follow the leaders of 
the party, maintaining that they had, " after the manner of 
a Dutch auction, sold themselves to the lowest bidder." 

Whatever may have been Mr. Binney's general opinion 
in regard to the war, he certainly disapproved one act of the 
administration in connection with it, — viz., the harsh treat- 
ment of General Hull after his surrender of Detroit. The 
first court-martial was dissolved by the President, without 
assigning any cause. A year later a second court-martial was 
ordered, and Mr. Binney volunteered to defend the general, 
but the aid of counsel was refused him. 13 One can well 
imagine what Mr. Binney must have thought of such a piece 
of tyranny. 

Another matter growing out of the war terminated more 
satisfactorily. The skipper of a small New England coaster, 
a thoroughly loyal man, having been captured, with his vessel, 
by the British, was recaptured near Lewes, Delaware, while 
accompanying them in a peaceable attempt to purchase sup- 
plies. Having been found with an armed force of the enemy, 
he was indicted at Philadelphia for high treason, and the 
charge was backed by strong circumstantial evidence. Mr. 
Binney defended him. As a matter of fact, the party had 
come ashore under a flag of truce, but the British admiral's 
certificate to that effect could not be put in evidence, and only 
one witness stated that he saw the flag. On the other hand, 
a number of the government's witnesses swore positively that 
they saw no flag. Matters looked serious for the defendant 
until it occurred to Mr. Binney to ask what was the direction 
of the wind as regards the place where the adverse witnesses 
were when they saw the party land. As the answers showed 



18 N. E. Hist, and Geneal. Rec, 1893, p. 309. 
68 



1812-15] ACTIVE PROFESSIONAL LIFE 

that the wind was blowing directly from the witnesses to- 
wards the landing party, so that any flag would have been 
blown directly away from them, and they could not possibly 
have seen it, the force of their prior testimony was broken, 
and the prisoner was acquitted. 14 

Of the effect of the war upon his own profession, Mr. 
Binney wrote as follows : 

" The war brought its usual fruits, destruction to com- 
merce and profit to the bar, whose interests are rarely injured 
by national adversity. This is one of the principal deduc- 
tions from the general popularity of the profession, and one 
of the reasons why it receives more respect than love. It 
flourishes while other callings are distressed. But lawyers 
did not make the war, and their agency diminished its mis- 
chiefs by keeping the current of the law unobstructed. 

" The usual incidents of war were mixed up with some 
extraordinary embarrassments caused by our former non- 
intercourse with England; for all American property that 
arrived in the United States from England, if it sailed after 
the war broke out, was as liable to confiscation by our own 
government as it would have been to condemnation if cap- 
tured by the enemy. A law of Congress, however, relieved 
our citizens ; but to obtain the relief required the intervention 
of the bar, and here again they profited." 



14 United States vs. Pryor, 3 Wash. C. C, 234. 



HORACE BINNEY [Mt.85 



ACTIVE PROFESSIONAL LIFE (Continued)— ELECTION 

TO CONGRESS 

1815-1833 

IT has been attempted, in the previous chapter, to give 
some idea of the beginning and development of Mr. 
Binney's active practice at the bar, but in truth the 
twenty-five years which followed his term in the Legislature 
furnish little material for biography. He argued many cases, 
some of them of permanent importance, but all of compara- 
tively little interest to the world at large ; as one of the coun- 
sel of the Bank of the United States, he wrote many opinions 
on points of commercial law; he performed the duties of a 
citizen for five years in Councils; and also as an officer of 
various institutions for philanthropic, educational, or other 
public purposes; he was a man of mark in the community; 
but his life was in no way eventful. Of this fact no one was 
more conscious than himself, for although he loved the law 
as the great peace-maker among men, he cherished no illu- 
sions in regard to the lawyer's life. 

" If a lawyer," he wrote, " confines himself to his pro- 
fession, and refuses public life, though it be best for his 
family, and therefore for his own happiness, it makes sad 
work with his biography. You might almost as well under- 
take to write the biography of a mill-horse. It is at best a 
succession of concentric circles, widening a little perhaps 
from year to year, but never, when most enlarged, getting 
away from the original centre. He always has before him 

70 



1815] ACTIVE PROFESSIONAL LIFE 

the same things, the same places, the same men, and the same 
end. It is surprising to what an extent he has the same 
clients. His work is always the same in kind, and he pursues 
the same method of doing it. One trial is very much like 
another, and one speech of a lawyer very like all the rest of 
his speeches. Every question in the longest life at the bar 
comes within the range of one or two inquiries, — Does the 
thing in controversy belong to A or B, or has C done some- 
thing to D which he ought not to have done? And after a 
lawyer has for thirty years employed himself in such in- 
quiries, he may write his life in a single sentence, — He spent 
his time in investigating facts, which when known did not 
make him any wiser, or in investigating principles which were 
of little use but to enable him to investigate and apply the 
facts. At least, such ought to be the case to justify the sneer 
which is commonly directed against the mere lawyer. This, 
indeed, constitutes the great drawback from the profession 
of the law, not merely that the life of a lawyer has great 
sameness, but that the investigations which cost him the most 
time and labour do not in the slightest degree increase his 
stock of useful knowledge. The physician in the practice 
of his profession, and at the bedside of his patient, investi- 
gates facts which instruct him in the general laws of pa- 
thology and in the general effects of medical treatment. He 
learns something for application in other cases, to soothe the 
pains of humanity, or to assist him in the investigation of 
some general truth not yet perfectly developed. His pro- 
fession is also largely connected with investigations of profit 
in many departments of nature, — mineralogy, botany, zool- 
ogy, and the like. But the lawyer's facts are unproductive of 
all benefits, except to the fortunate client. When the cause 
is tried, the facts are of no more importance to the lawyer 
himself than last year's price of calicoes, nor to the rest of 

71 



HORACE BINNEY [JEt. 35 

mankind perhaps half so much. They are forgotten as soon 
as the verdict is given, and well for the lawyer is it that they 
can be forgotten. 

" The more a man is a lawyer, then, the less he has to 
say of himself. The more causes he has tried, the more time 
has he lost. The more facts he has investigated, the less he 
knows. The biography of lawyers, however eminent, qua 
lawyers, is nothing. Such men have been in some instances 
connected with political life, and with the great actors in it, 
and a few have been deeply tinctured with letters and have 
been part and parcel of the world of authors. This is another 
matter; but the life of the best practical lawyer that ever 
lived, if confined to the history of his practice, or to the his- 
tory of his social and intellectual march through the world 
within the proper limits of his profession, would in general 
be truly summed up as I have summed it." 

To proceed, however, with the brief record of these busy 
years, it may be noted that by the close of the war with Eng- 
land Mr. Binney and his personal friends at the bar were in 
possession of all that the profession of the law could at that 
time bring, whether of reputation or of gain. Those who 
had been leaders fifteen years before had in a great degree 
retired from active practice, and in a few years afterwards 
most of them had passed away. Though closely occupied at 
the bar, so closely that he had had to cease reporting the Su- 
preme Court decisions, a work in which he took a very keen 
interest, Mr. Binney served as a member of Select Councils 
from 1816 to 1819, a service which meant a sacrifice of time 
and personal comfort, as he had no taste for public fife, nor 
any desire to make this unpaid office a stepping-stone to 
something higher. After his term in the Legislature he had 
been repeatedly asked to be a candidate for Congress, but 
had " uniformly and obstinately declined." His opinion of 



1815] ACTIVE PROFESSIONAL LIFE 

American public life, as expressed in a letter to his friend 
Pickering, in February, 1815, was this: 

" Public life is in the United States what it is, I believe, 
in no other country in the world. In other countries it is a 
profession. It has its peculiar and permanent rewards of 
wealth, reputation, and power, in each of which there is per- 
haps a sufficient recompense for the individual, his family, 
and his friends. Here I need not say what it is to you, who 
know what have been its fruits to one of the purest and wisest 
statesmen of our country. I may be excused for saying that 
there is no individual in this people who is held in more vener- 
ition by myself and my friends than your excellent father, 1 
3r whose history — I mean, of course, the history of his public 
awards — reads a more decisive lesson upon the nature of the 
public profession in America. He has shown that to be a 
I pure, honourable, lofty statesman it is necessary to take up 
I che cross and despise the shame ; and what young man, unless 
le is elected to be an apostle and a martyr, and is gifted with 
their spirit, will take up the one or encounter the other?" 

Whether this view was wholly correct may be open to 
question. It is to be hoped that it is less correct, at least in 
some respects, as regards public life at the present day than 
it was in 1815; but, correct or not, it was sincerely held, and 
is referred to merely to point out that Mr. Binney's five years 
of service in Select and Common Councils involved a real sac- 
rifice to what he thought his duty as a citizen. Such sacrifices, 
I however, were not uncommon at that day, and they indicate 
that, small and plain in appearance as Philadelphia then was, 
there was proportionately far more public spirit (of the self- 
sacrificing kind, the only kind that is worth having) then than 
now. These sacrifices on the part of the best citizens bore 



1 Hon. Timothy Pickering. 
73 



HORACE BINNEY [^Et. 36-43 

good fruit, the character of the municipal officers being such 
that the city was as honestly and capably governed as any in 
the world at that time. Were the same public spirit preva- 
lent to-day, with the greatly increased opportunities for mu- 
nicipal activity, no Philadelphian would have any cause to 
be ashamed of his city. If the City Councils, for instance, 
had among their members a fair number of the leaders of 
the bar, the men in most active practice, and a similar pro- 
portion of the most prominent men in other lines, what might 
not Philadelphia become? To say that they could not be 
elected is to confess that popular government is necessarily 
a failure. The only other explanation of their exclusion 
from the city government is that they are unwilling to make 
the sacrifices which participation in it would involve. 

In 1816 Mr. Binney was selected to aid Mr. Ingersoll, 
then Attorney-General, in the trial of Frederick Eberle and 
forty-eight others 2 for conspiracy to forcibly prevent the 
use of English in the services at Zion German Lutheran 
Church on Fourth Street. The congregation had become so 
far Americanized in the course of years that a large number 
of them wished to have the services conducted in English to 
a certain extent, though not to the exclusion of German. 
The German party, however, would take no compromise, and 
circulated a paper stating, among other things, that they 
would resist all use of English " mit Leib und Leben." The 
threat was carried out, so far as physical violence was con- 
cerned, though without actual bloodshed. At the trial the 
fierceness of the German party abated somewhat, and they 
attempted to prove that " mit Leib und Leben" was a mere 
figure of speech, indicating the use of only as much force as 
the law would allow ; but there was enough evidence to show 



; See Commonwealth vs. Eberle, 3 S. & R., 9. 

74 



1816-23] ACTIVE PROFESSIONAL LIFE 

an actual intention to exemplify the sentiment afterwards 
expressed by Bismarck, — " Wir Deutschen filrchten Gott 
und sonst Niemand in der Welt" — and the defendants were 
convicted. They were afterwards pardoned, however, the 
governor being a man of their race. 

In 1819 Mr. Binney purchased a summer residence on 
the banks of the Delaware, at Burlington, New Jersey, then 
a favourite resort of Philadelphians, as it was easily reached 
by steamboat and of course very much more quiet and rural 
than it is now. This remained the summer home of his family 
for nearly thirty years, though he himself was rarely there 
for many days at a time. 

In 1821 he was one of the founders of the Apprentices' 
Library and its first president. 

In the same year he argued the leading case of Laussatt 
vs. Lippincott, 3 wherein it was held that where goods are 
delivered to a factor for sale, and he deposits them with a 
broker or other sales agent in the ordinary course of busi- 
ness, and advances are made in anticipation of sale, the prin- 
cipal is bound by the transaction even though he may not 
ultimately receive the money, or though the sale may not be 
on the terms on which he ordered it to be made. 

The case of Lyle vs. Richards, 4 argued in 1823, is of 
great importance in Philadelphia as settling the title to the 
Bush Hill property, originally a country-seat of the Hamil- 
ton family, but now a closely built portion of the city. The 
case, an action of covenant on a ground-rent deed, concerned 
the construction of a devise with contingent remainders in 
tail, and the validity of a common recovery which Mr. Binney 
had himself conducted in 1814, and which was held to have 



6 S. & R., 386; s. c, 1 Am. Lead. Cas., 668. 
9 S. & R., 322. 

75 



HORACE BINNEY [^Et. 43-44 

been well suffered. Apart from the financial importance of 
the case, the opinions are also of great interest as treatises 
on the transmission to Pennsylvania of the common law in 
regard to real property. It was in this case that the court 
acknowledged the eminence of several departed worthies of 
the bar, and especially of Edward Tilghman. 

Although devoting himself almost exclusively to his pro- 
fession, as far as business matters were concerned, Mr. Bin- 
ney was far from indifferent to those great industrial de- 
velopments, which, especially in the matter of transportation, 
distinguished the period in which he lived. Thus in 1823 he 
was one of the incorporators of the first Pennsylvania Rail- 
road Company, chartered to build and operate a railroad 
from Philadelphia to Columbia on a system invented by the 
celebrated engineer, John Stevens, of New Jersey, a con- 
nection by marriage of Mr. Binney's. Steam-railroads can 
hardly be said to have yet existed, for although Stephenson 
had made his first successful trial of a locomotive in July, 
1814, the Stockton and Darlington Railway, the first road 
in the world to carry passengers and goods by means of a 
locomotive, was not opened until September 27, 1825. The 
Pennsylvania Railroad Company of 1823 was apparently 
met by the same problem that at first confronted its name- 
sake of 1846, — viz., lack of the necessary capital; and as the 
plan of obtaining subscriptions from municipal corporations 
was not yet in vogue, the enterprise had to be abandoned 5 
and the charter allowed to lapse; so that the same corporate 
title was available for adoption twenty -three years later by 
another company. 

In 1824 Mr. Binney's oldest son, at that time the only 
one, entered Yale College. Many other parents have doubt- 



6 A railroad to Columbia was built by the State about 1830. 

76 



1823-24] ACTIVE PROFESSIONAL LIFE 

less taken an equally keen interest in the mental and moral 
training and development of their sons, but comparatively 
few whose burden of professional cares and duties was equal 
to Mr. Binney's have been willing to give to that training 
and development as constant and close personal attention as 
he did. From October, 1824, when he left his son at New 
Haven to begin his studies, until September, 1828, when he 
was present at his graduation, Mr. Binney wrote to him every 
week, saving only when they were together, or in the very 
few instances when ill health or the pressure of work made 
writing an impossibility. The sacrifice of time and comfort 
which these letters cost is shown by frequent references to the 
circumstances under which they were written, often late at 
night, when mind and hand were alike wearied by prolonged 
labour, sometimes before breakfast, and two or three times 
while waiting in court, " during a bombardment of reports, 
Acts of Assembly, and so forth;" but even if he had to 
" steal almost from necessary repose" the time required, while 
smarting eyes and singing ears showed the strain of continu- 
ous work, the father could yet say, " Nevertheless, it may be 
of use to you, however written, and it is the hope of this, my 
dear boy, that makes my fingers fresh for the pen when my 
body and almost my mind are exhausted by daily labour." 
The correspondence had a double object, to enable the father 
to keep in*touch with his son through every step of his college 
career, counselling, suggesting, inquiring, and sometimes 
criticising, and to accustom the son to express his thoughts 
fully and freely in writing on any subject which might come 
up. In the way of counsel every part of the field was covered, 
not only as to studies, but as to health, exercise, eating, sleep, 
dress, use of money, keeping accounts, handwriting, tricks of 
manner, formation of friendships, social duties, religious ob- 
servances, and every detail that bore on the development of 

77 



HORACE BINNEY [Mt. *5 

character and personality. A less positive character than that 
of the son might perhaps have been dwarfed by the very 
pressure of such minute and detailed oversight and control, 
or a less obedient nature might have rebelled against it, but 
in this instance the course pursued seems to have been alto- 
gether fitting, and in any event the constant invitation to the 
freest expression of opinion in reply provided a safety-valve 
in case the pressure should ever be too severely felt. All the 
letters display not merely deep affection and interest, but the 
fullest confidence in the son to whom they were sent. Thus 
where one letter had been thought to show apprehension in 
regard to the course of study pursued, Mr. Binney wrote : 

I had no apprehension. My object was to prevent an occasion 
for any. It would by no means answer to apply such a rule to my 
letters, that my animadversions upon an error spring from a supposi- 
tion that you have fallen, or are about to fall, into it. I have en- 
deavoured, I fear with no great method (such are the other demands 
upon my time), to make a chart of the seas through which you are 
sailing, or must sail hereafter ; and I have, in execution of this design, 
pointed out the deep and safe waters, and the currents and shoals 
that are unsafe. I have had no apprehension that you were already 
in the currents or upon the shoals, nor that you were immediately in 
danger of being there ; but I point out the evil to you, as the maker of 
charts does to the navigator while he is still on shore. I have little 
doubt that you will avoid most or all of them, perhaps not the less 
because I have pointed them out to you. 

In these letters Mr. Binney made no secret of his intense 
desire that his son should make the most of every oppor- 
tunity for mental and moral development that his college 
life afforded. At times this desire came to the front in such 
words as, " My heart is absolutely anchored to the hope that 
you will be the first scholar in the class," or, " I absolutely 
hunger and thirst to see you a first-rate Latin and Greek 



1825] ACTIVE PROFESSIONAL LIFE 

scholar, and mathematician, and anything else you please," 
and, as more than one letter shows, the scholarship which he 
had in mind was something more fundamental than merely 
what might be shown by college examinations and be re- 
warded by college honours. 

That the son was intended for the bar seems to have been 
practically settled before he entered college. It is occasion- 
ally alluded to in the letters, especially those written towards 
the end of the college course, yet such was Mr. Binney's 
belief in the necessity of the collegiate education as a founda- 
tion for the professional, that the letters are concerned almost 
wholly with the former, and legal matters are scarcely ever 
referred to. But one of Mr. Binney's numerous cases is 
mentioned, and that in consequence of his son's inquiry about 
it. Public matters are rarely alluded to, and family matters 
at no great length. Nearly every letter is devoted to a dis- 
cussion of some topic bearing directly on the son's studies or 
the development of his character. 

The career of Horace Binney, Jr., both at college and in 
after-life, amply rewarded all his father's care and realized 
his fondest hopes. He not merely attained the highest col- 
lege honours, and a very unusual breadth of scholarship, but 
developed a character remarkable alike for strength and 
purity. He was not, it is true, favoured with his father's 
opportunities for winning professional distinction, but he 
was always recognized as a thorough master of his profes- 
sion, and showed conspicuous ability in every task which he 
undertook, whether as a lawyer or as a citizen. 

These letters to his son give some glimpses of Mr. Bin- 
ney's life in 1824-28. On February 2, 1825, he wrote: 

At home I have to record a Wistar party on Saturday evening 
last, where I had the pleasure of seeing an assembly of about a hun- 

79 



HORACE BINNEY [^Et. 45 

dred of the most agreeable and well-informed men, strangers and 
residents, to be found in our city. . . . There were so many that 
it was not possible for me to say more than a word to any one, but 
they engaged themselves with others, as they found most agreeable. 
Mr. Cooper, the author of " The Spy," was also there ; Mr. Ticknor, 
the professor of modern languages at Cambridge; Major Long, 6 
Mr. Say, etc., the gentlemen whose journey to the sources of the 
St. Peter you saw lying on my table; in fine, all you know, and a 
great many you don't, even by name or description. 

In the summer of 1825 Mr. Binney visited Niagara in 
company with his oldest daughter and Miss Dale, the 
daughter of his friend, Commodore Richard Dale, one of 
the heroes of the " Bonhomme Richard." Two letters give 
some idea of the impressions received on this trip. 

Niagara Falls, July 3, 1825. 

We arrived at this place last evening, after a delightful ride 
from Albany. . . . The ride as far as Utica is thro' the beautiful 
valley of the Mohawk, which possesses as much interest to the lover 
of the picturesque, as well as to the lover of agriculture, as you can 
imagine; and when you connect with this the lakes of Skaneateles, 
Cayuga, Seneca, and Canandaigua, over or on the shores of which 
you pass, and which are sheets of the purest water, with beautiful 
shores and with beautiful villages on them, you may suppose the ride 
has been a delightful one. But all, all fades before the scene which 
I have just viewed, and which is distinctly visible from the window of 
the room where I write. I am, as my date shows, on the British side, 
and in the dominions of the British sovereign. On this side you are 
supposed to have the best view of the Falls, it being the side on which 
the Horseshoe Fall, as it is called, makes its plunge. 

The mass of beautiful green water constantly tumbling over 



"Major Stephen H. Long, of the Topographical Engineers, United States 
army. In 1819-20 he commanded an exploring expedition in the West, reaching 
the Rocky Mountains and making considerable additions to the geographical 
knowledge of the day. 

80 



1825] ACTIVE PROFESSIONAL LIFE 

this part of the fall makes it a particular object of attraction, and 
you can stand on Table Rock in perfect safety close by the edge 
of it. Everywhere, however, it is magnificent beyond description, 
and it is so vast, and at the same time so well proportioned, if I may 
so say, that half the observers are at first look disappointed. It is 
only when, after a second and a third visit, the mind comprehends 
all the details of this vast object, — the quantity of water, upward 
of one hundred millions of tons hourly; its great breadth, about 
three-quarters of a mile, or as wide as the Delaware at Philadelphia; 
its depth, as great as the height of Christ Church steeple ; the cease- 
less tumbling of this mass of waters into the profound abyss ; the 
continued rising of the vapour; the foaming, tossing, hissing, and 
howling of the water; and above the falls, for two or three miles, a 
succession of falls or rapids, over which the waters spring emulous 
to form part of the great cataract, — it is only after thinking of the 
union of all these that the impression of their magnitude becomes 
awful. One day you must see them : they shall be a reward for your 
college victories. 

Albany, Saty. 9 July, 1825. 
We arrived here last evening from the Falls of Niagara, and 
go over to Lebanon this afternoon, hoping to see you at New Haven 
on Thursday or Friday. . . . No accident has occurred in a ride of 
more than 600 miles to disturb the security and pleasure of the jour- 
ney. We have seen a great deal, of which many people talk as if New 
York contained les sept merveilles. I have not seen that, nor, indeed, 
anything but the Falls of Niagara, to excite wonder; but there is 
the appearance of great activity, and in a short time we may expect 
some refinement, of which at present there is a very natural scarcity. 

On December 28 Mr. Binney presided at a meeting held 
in the Supreme Court room to urge the construction of a 
breakwater at the entrance to Delaware Bay, many vessels 
having been lost there every year on account of the lack of 
any harbour to take shelter in in stormy weather. This move- 
ment brought about the Act of Congress of May 23, 1828, 

6 81 



HORACE BINNEY [^Et. 46 

providing for the construction of the breakwater, which was 
begun the following year. 

(From a letter of March 22, 1826.) 

Professor Everett has made a speech in Congress, which has 
made more noise than from the printed sketch it deserves. He has 
uttered in it a sort of confession of faith on the subject of Slavery, 
that was gratuitous, not at all called for by the occasion, and will 
make him infinitely odious to many people who wished him well. He 
says that servitude, more or less mitigated, is inseparable from the 
conditions of human nature; that Christianity presupposes it, and 
provides for it, by saying, " Slaves obey your masters ;" that the 
Southern slaves are better off than the European peasants, etc., etc. 
This is either false, or nothing to the purpose in favour of slavery, 
which is an institution that ought to be regarded as both an evil and 
a sin; for unless it be so regarded, due exertions will never be made 
to get rid of it, and it will finally vent itself in a tremendous volcano, 
that will overspread with its lava the whole Southern country, as it 
has done the island of Haiti. I wish well to the South. I think no 
man does who encourages its people to perpetuate the institution of 
slavery. 

{From a letter of July 20, 1826.) 

Nothing is stirring among us, unless it may be orations and 
ceremonials in celebration of the two ex-Presidents. There is some- 
thing very extraordinary in the coincidence of these deaths ; but to 
those who were living twenty-eight years ago, and were of an age to 
understand and remark the political events of the day, the most 
extraordinary feature in their history is that of a joint or consociated 
celebration. Their tempers and dispositions towards one another 
would at one time have made a very tolerable salad, though I do not 
mean to say which was the pepper and vinegar, and which the oil; 
but it never entered into my conception that it would ultimately settle 
down into such a homogeneous mixture as to admit of one and the 
same apotheosis. You must understand me, my son, however, for I 

82 



1826] ACTIVE PROFESSIONAL LIFE 

will not be instrumental in conveying to you an error of any kind, 
and therefore I would not have you think that I mean to sneer at 
these celebrations. Mr. Adams and Mr. Jefferson were both dis- 
tinguished men of the Revolution, and then and for some years after 
walked hand in hand. They may be celebrated in common during 
this, perhaps the best and most useful part of their lives ; and they 
may be celebrated for great properties. I think, however, candidly, 
that justice will not be done to Mr. Adams by any such common cele- 
bration. He deserves to be spoken of by himself, and in my humble 
judgment as a much wiser, stronger, and better man than Mr. Jeffer- 
son ; I mean better for the great interests of our country. He was a 
very downright and outright, as well as upright man, full of passion 
and not exempt from prejudice. Consequently he showed all his 
failings and showed them in the strongest lights. But he was withal 
a most honest man, a thoroughly read statesman, and a man who 
could no more be turned from his purpose than a lion. Mr. Jefferson 
I ought not to speak of; he has been the steady, undeviating, and 
but for his recent death I would say insidious enemy of my profession 
in its highest walk, the bench, the judiciary. I confess myself 
strongly prejudiced against him. He was accomplished in all the 
arts that make intercourse with a man delightful, so his friends say. 
This people may say that he was equally accomplished in all the 
arts that captivate the popular heart, and subdue it to the purposes 
of the politician. I lived when young in such circumstances as not 
to be able to praise him for this. In the history of American parties 
he will have with posterity the precedence of Mr. Adams, but I cannot 
doubt that in the history of American Independence, although Mr. 
Jefferson wrote the Declaration, Mr. Adams will be commemorated 
as foremost and the most strenuous in its achievement. 

Mr. Binney was a delegate to the General Convention 
of the Episcopal Church in 1826 and 1829. At the former 
he wrote the report of the Committee on the General Theo- 
logical Seminary, which had been in existence barely nine 
years, and was still considerably in need of funds. The re- 

83 



HORACE BINNEY [Mt.4,7 

port recommended that the dioceses be asked to join, in pro- 
portion to the number of clergy in each, in raising the sum 
of twenty thousand dollars, in order to restore to the endow- 
ment fund what had been advanced from it to the building 
fund, calling attention to the reproductive character of the 
charity in these words: " Most charities are consumed in the 
use. They are like the annual flowers of the field, — there 
remains little after them but the recollection of their beauty 
and grateful fragrance. But the endowment of a seat of 
learning, and, above all, of Christian learning, is the planting 
of a tree whose fruits are perennial, whose roots strike deeply 
into the soil, and whose branches, spreading over the earth, 
and shooting up into the skies, continue from year to year, 
and from age to age, to reproduce and to commemorate the 

gift.- 

The convention received this report with hearty approval, 
and adopted the resolution suggested, but the desired result 
was not attained by precisely the mode proposed, for the 
records of the convention of 1829 show that the dioceses of 
New York and South Carolina alone made any attempt to 
raise their proportionate shares of the fund, and only the 
receipt of a large legacy obviated the need of a renewal of 
the appeal. 

Early in 1827 occurred the trial of the long protracted 
libel suit of Levett Harris vs. William D. Lewis, a cause 
celebre at the time, but never reported. The defendant had 
been one of a firm of merchants in St. Petersburg, the only 
American house there, during the last years of the " Conti- 
nental system," under which British trade was excluded from 
the Continent. His firm claimed to have been injured by 
certain alleged acts of the plaintiff, the American consul, in 
corruptly certifying English goods to be American, thereby 
enabling them to be imported and sold. During Monroe's 

84 



1827] ACTIVE PROFESSIONAL LIFE 

administration there was some idea of appointing Mr. Harris 
minister to Russia, and, to prevent a confirmation in case the 
nomination were made, Mr. Lewis printed a circular, en- 
titled " Consular Corruption," containing detailed statements 
of alleged sales of certificates, and had it laid on the desk 
of each Senator. Mr. Harris was not appointed, and in 
January, 1820, brought suit for libel in the Supreme Court 
of Pennsylvania, at nisi prius, laying his damages at one hun- 
dred thousand dollars. He retained Mr. Binney as leading 
counsel, and with him Messrs. Dallas, Hopkinson, Charles 
J. Ingersoll, Sergeant, and Swift. Mr. Lewis, whose plea 
was truth and justification, was represented by Mr. Chauncey 
and Joseph R. Ingersoll. The testimony, relating to occur- 
rences of several years before, and obtained from consular 
officials and persons engaged in foreign commerce, had to 
be taken under commissions in many parts of the world, so 
that the case was not ready for trial till seven years had 
elapsed. Among other distinguished witnesses was John 
Quincy Adams, then Secretary of State, who had been the 
minister at St. Petersburg at the time of Harris's alleged 
acts. So great was the public interest in the case, both parties 
having numerous and zealous adherents, that the judges who 
always tried Philadelphia cases (Tilghman, Gibson, and 
Duncan) preferred to keep clear of it, and selected Judge 
Huston to hold the court, he being from a remote county 
and beyond the reach of the local influence. The trial lasted 
from January 29 to February 14, about half the time being 
consumed by the arguments and the addresses to the jury. It 
resulted in a verdict for the plaintiff for one hundred dollars. 
Writing on February 14, the day the case went to the 
jury, Mr. Binney said, — 

They [the jury] have not agreed, and from what I hear I do 
not know that they will. It has been a cause of unexampled labour 

85 



HORACE BINNEY [JEt. 44-47 

and public excitement; and you may imagine the burden placed on 
me, when it was my post to conclude the cause, and I occupied with 
my speech from five o'clock of Monday afternoon [the 12th] until 
the same hour of yesterday, having in that time spoken seven hours. 
I endeavoured to do my duty, and I am gratified to learn that the 
impression was a good one. The court-house was crowded during 
the trial, and particularly during the last two days, when there were 
probably more than five hundred persons in the room. . . . 

My health, as you may suppose, has suffered a little by the 
continuance of my labour and attention for so long a period. At 
some moments in the cause I have suffered intense pain; but now it 
is over, I am able to say to you that the consciousness of having 
endeavoured faithfully to do my duty effaces all recollection of what 
was disagreeable in it, even before my body is recovered from its 
fatigue. 

At the Harvard Commencement of this year Mr. Binney 
received the degree of Doctor of Laws. While appreciating 
the honour, he was averse to making much use of the title, 
saying to his son, " In regard to the LL.D., it is not meant, 
of course, for an every-day dress, to be worn on the outside 
of letters, nor on the inside either, after the first salute. I 
have already been doctored to death, not an uncommon thing, 
according to Le Sage." 

The Pennsylvania Horticultural Society was founded on 
December 21 of this year, and in the following June Mr. 
Binney, who had been one of its originators and had always 
cared a good deal for his own gardens, was chosen president 
for the first year. He held the same office again from 1836 
to 1841. 

One incident of his fife during the twenties illustrates a 
state of public opinion which, to the Philadelphian of to-day, 
seems as far off in the past as the Golden Age. The city still 
had a large foreign trade, and the interests of commerce 

86 



1824-27] ACTIVE PROFESSIONAL LIFE 

dominated. " On a certain afternoon," wrote Mr. Binney, 
" while I was sitting in my office, a committee of the Chamber 
of Commerce of this city came in, and asked me to draw a 
memorial for the body to the Senate of the United States, 
against the tariff, or protection. I told them that I would 
attempt it, with pleasure. ( The work was wholly unprofes- 
sional, but patriotic, and to be so considered, as it was.) I 
asked when they required it for signature; and the answer 
was, ' To-morrow morning.' I replied that the time was 
short, but I would do my endeavour. I sat at the work that 
night, I will not say what portion of it, and gave it to them 
in the morning, the first copy, though pretty clean, and they 
copied and signed it without a word of alteration, and sent 
it to the Senate." 7 

Mr. Binney himself never saw the memorial again, but it 
is in print, 8 and states very clearly his views on the relations 
between the government and the citizens in regard to private 
affairs, views which, he insisted, were held by the old Fed- 
eralists generally. It may be well to quote some passages. 

The universal opinion of well-informed men has now estab- 
lished it as a general rule that the greatest degree of national wealth 
is to be obtained by leaving every one to the unfettered use of his 
own labour, skill, and capital; for it is in this way that individuals, 
of whom nations are composed, attain to the greatest prosperity. 
Obvious, however, as this general truth now is, it has been long in 
coming to light; legislation has had its dark ages as well as letters; 
and certainly they have continued longer to envelop the principles 
of national wealth than they did to obscure the laws of science or the 
beauties of literature. It is to be hoped that the dawn, which has 
tardily broken over the world in the department of trade, is not to 



7 Letter to Dr. Lieber, September 17, 1869. 

8 Executive Papers, No. 94, 18th Cong., 1st sess., vol. ii. It is dated February 
24, 1824, and opposes the tariff bill which became a law on May 22, 1824. 

87 



HORACE BINNEY [Mt. 44-47 

be immediately overcast, and particularly that the clouds which are 
again to darken it are not to proceed from a quarter where every- 
thing else, in regard to government, lies in the broadest light. If 
legislation acts upon the subject of trade, which, after all, is more 
safely left to the law of man's nature, by which he is incessantly 
stimulated to do the best for himself, and therefore for his country, it 
should act for the removal of impediments and restrictions, not for 
the creation of them. So much more unerring, however, is this law 
of man's nature than any political regulation, that it has been deemed 
the wisest course to abstain from public enactments altogether, and 
leave the hive to the industry and instinct of its labourers, without 
attempting to direct which cell shall be first filled, or to narrow the 
passage to one, or enlarge it to another, more than the wisdom of the 
labourers shall each for himself provide. 

Whatever interference with the general freedom of trade is 
necessary for the purposes of revenue, and, still further, whatever 
provisions have justly for their object to sustain the government 
itself, by enabling it to withstand the shock of war, and with this 
view to promote, within its own bosom, the necessary resources for 
such a trial, all communities of men must submit to, and will submit 
to cheerfully. Laws enacted for these purposes are necessary excep- 
tions to the general rule — not exceptions to its truth, for it is true 
without exception, but exceptions to its application; they are the 
price which nations pay for their existence as such; they tend to 
diminish the production of wealth, but they do what in every condi- 
tion of the world has been found as useful as to produce, — namely, 
to secure the product. But beyond this the danger of legislative 
interference with trade becomes extreme. Be the wisdom and impar- 
tiality and foresight of the Legislature what they may, they are at 
no time, and under no circumstances, perfectly adequate to the task. 

After some discussion of the details of the proposed law, 
the memorial concluded in these words : 

To the principle of the law your memorialists are, however, 
more opposed than to its details. It seems to them to be a political 

88 



1824-27] ACTIVE PROFESSIONAL LIFE 

theory under the name of a duty bill; and that a theory which both 
argument and experience have exploded, — the theory that govern- 
ment knows better than an individual what is good for him, and can 
better employ his skill, his labour, and his capital; that it is wiser, 
and more economical, to buy dear of our own people than cheap of 
foreigners; and that it is competent, in these times, for a nation to 
grow wealthy and happy, with her gates opening outward to sell 
everything, but to buy nothing. 



The memorial was unheeded by Congress, but it voiced 
the opinions of the leading association of Philadelphia busi- 
ness men at that day. One would as soon look for such a 
memorial from any such body to-day as one would for a re- 
quest from the leading citizens of Charleston for the appoint- 
ment of negroes to office. 

Upon the death of Chief Justice Tilghman, in April, 
1827, the bar of Philadelphia, with very few exceptions, 
united in a memorial to Governor Shulze, requesting him 
to appoint Mr. Binney as Tilghman's successor. Mr. Binney 
himself took no part in the movement, never writing a letter 
or saying a word to promote the design. In fact, he never 
even saw the memorial or knew its contents. Any other 
course of action would have been utterly at variance with his 
principles. " In the time of General Washington," he wrote, 
" and of his immediate successor Mr. Adams, I think it would 
not have been thought less strange for a man to solicit a 
judgeship than for a lady to solicit a gentleman in marriage. 
Had such an instance occurred, it would have been univer- 
sally held to imply a want of both dignity and capacity, to 
have been a self -puffing and a self-seeking, which wholly un- 
fitted the applicant for a judicial station. Solicitation of 
such an office by the individual concerned, or at his instance, 
was wholly unknown. But [Jefferson] led the way to a 



HORACE BINNEY [iET. 47 

change. From a tide-waiter to a minister plenipotentiary, 
from a marshal to the highest judge in the land, the people 
were enticed to interfere, by personal recommendations, in 
all appointments to office. They were sometimes prompted 
to do it by agents of the Executive, to divide or perhaps cast 
off the responsibility for an improper appointment. In the 
sequel every office became subject to the usage, and the in- 
terval was a short one between asking others to ask for you 
and asking directly of the appointing power. ... I object 
to the practice in regard to any office. I abominate it in re- 
gard to judicial office, in which it can hardly be expected 
that the judge will stand erect and unbending between the 
parties after he has obtained his place by begging it as a 
favour from one of them." 

The governor saw fit to appoint Judge Gibson, who had 
been one of the puisne justices of the court for nearly eleven 
years; but, to show some deference to the bar, he sent Mr. 
Binney a commission to the seat vacated by Gibson's promo- 
tion. The mere fact that the chief -justiceship had been given 
to another was nothing to Mr. Binney, and had the commis- 
sion been offered during Tilghman's lifetime, as might have 
been done in 1826, when two judges were added to the bench, 
it would probably have been accepted, for although Mr. Bin- 
ney had no particular desire to be a judge, he would have 
deferred to the wish of the bar, and service under such a chief 
as Tilghman would have been thoroughly congenial. As it 
was, while he had a good opinion of Judge Gibson in some 
respects, he did not think him well fitted to lead the court, 
and he could not have served under him without either sacri- 
ficing his own ideals of the performance of judicial duties or 
running the risk of stirring up jealousy and dissension. 
Wishing an impartial judgment on the matter, however, he 
did not decline the appointment without consulting some 

90 



1827] ACTIVE PROFESSIONAL LIFE 

of his friends, who were of one mind in advising against 
acceptance. Writing to his son, on June 14, Mr. Binney 
said, — 

You have perceived probably by the papers the course I took 
in regard to the honour extended me by the governor. My friends 
are not quite right in supposing that I declined it because it was the 
lesser honour. I declined it because I was free to do so, and would 
have done the same with the other had it been offered and had I been 
as free to follow my own judgment. My friends and the bar asked 
the one and not the other. Their request would have been a law to 
me had it been granted, but still a hard law. Nine months absence 
per annum from the city and the rest in court (such is the fate of a 
judge of the Supreme Court) may be an honourable banishment from 
one's wife and children and domestic comfort, but it is still a banish- 
ment. I am still spared, and I hope without losing credit. 

Mr. Binney had not merely a very high regard for Tilgh- 
man as a judge, but a very strong personal feeling also. 
Their natures seem to have been thoroughly in accord. 
Tilghman was precisely the kind of judge that Mr. Binney 
would have wished to be had he occupied Tilghman's place. 
The movement to make him Tilghman's successor was prob- 
ably due in part to a belief that he was better fitted than 
any one else to maintain the traditions of the bench as they 
were in Tilghman's time; and under these circumstances it 
was only natural that the committee of the bar appointed 
to arrange for a eulogium upon the late chief justice re- 
quested Mr. Binney to deliver it. He did this on October 
13, giving to his hearers a beautiful picture of a wise, learned, 
upright, conscientious judge; conservative, but not the slave 
of precedent; progressive, but always seeking to maintain 
the harmony of the law. Every sentence in the discourse 
was written con amore. " It gratified me to find that I gave 

91 



HORACE BINNEY [JEt. 48-49 

satisfaction to the bar 9 and was not thought to have done 
injustice to the character of Chief Justice Tilghman. I took 
infinite delight in showing what sort of a chief justice we had 
had for twenty years ; and if it was remarked that the points 
of character on which I dwelt were those with which the 
qualities of his successor were most in contrast, I must reply 
that they were not selected with any such reference." 

Early in March, 1828, Mr. Binney argued the case of 
Conard vs. The Atlantic Insurance Company, 10 at Wash- 
ington, a case which he once alluded to as illustrating the 
stubbornness of President John Quincy Adams. A certain 
China merchant, named Edward Thomson, " imported im- 
mense quantities of tea, and under the bonding law as then 
existing he had placed it in the storehouses, and whenever 
he pleased he could take out as much as was necessary and 
bond it. Well, he made an arrangement with the keeper of 
the storehouses, and took out great quantities without putting 
it in bond at all; for then, too, as has been more frequently 
the case in later years, it was a question of ' who should watch 
the keeper.' Of course, this was all discovered. He had 
borrowed largely in New York, and given as security the 
bills of lading, etc., of cargoes that were coming to this port. 
Mr. Adams had the ships libelled at once on arrival here as 
property, and I was engaged by the insurance companies, the 
holders of the bills of lading. The law was clear, of course, 



'Mr. Binney himself did not think the eulogium beyond criticism. To his 
son he wrote: "I think less [of it] than some others affected to do. It must be 
recollected that such a composition is intended for delivery rather than for 
perusal, and the delivery appeared to produce some effect. My indifference to 
such matters is much nearer to frigidity than it ought to be to do the thing per- 
fectly, and the dispositions of my mind are too much inclined to reasoning for a 
brilliant sally of imagination, the faculty which is fittest for funereal or patriotic 
commemoration." 

10 1 Peters, 386. 



1828-29] ACTIVE PROFESSIONAL LIFE 

but Mr. Adams insisted on his view, and sent Mr. Wirt up 
to fight me. I did not mind Mr. Wirt much, because I had 
the law with me, but he made a fine argument, and I won 
the case. So little did Mr. Adams know of commercial law 
that he insisted on taking the case up to the Supreme Court. 
I argued it there against Mr. Wirt again, and, nemine con- 
tradicente, the court held in my favour. So the government 
was put to all that expense by Mr. Adams's obstinacy." 1X 

No physician saves the fife of every patient, and no 
lawyer wins all of his cases. In both professions reputation 
may be won in defeat, and it may be said of Mr. Binney's 
defeats, which in number nearly equalled his victories, that 
not one of them marred his reputation in any way. One of 
the former was the case of Lancaster vs. Dolan, 12 argued 
early in 1829, and referred to by Mr. Binney, years after- 
wards, in his sketch of Edward Tilghman, who had won the 
case of Newlin vs. Newlin, 13 which Lancaster vs. Dolan over- 
ruled, thereby sweeping away " every vestige of authority 
from a married woman, during coverture, to alienate or 
pledge her separate trust estate." What Mr. Binney wrote 
of the mature consideration with which the earlier case had 
been decided, after a full argument, was within his own 
knowledge; but no one, even to-day, can read the report of 
Newlin vs. Newlin without seeing that Chief Justice Gibson 
had no warrant for saying that it " was hastily determined 
upon an exception to evidence." " He never," wrote Mr. 
Binney, " made a greater mistake, unless when he overruled 
the authority. ... It has taken more than one Act of 
Assembly to patch the hole in the law that was made by 
Lancaster vs. Dolan, and it is not well patched yet." 14 



11 Memoir of Henry Armitt Brown, by J. M. Hoppin, p. 112. 
12 1 Raw., 231. u 1 S. & R., 275. 

" Leaders of the Old Bar, 59. 

93 



HORACE BINNEY [Mt. 49-50 

Judge Washington's death, on November 26, 1829, 
created a vacancy in the Supreme Court of the United 
States, and Mr. Binney's friends at once applied to Presi- 
dent Jackson in his behalf. More than two years before this, 
Mr. Wirt, then Attorney-General, had stated that if a seat 
on that bench should become vacant, President Adams in- 
tended to nominate Mr. Binney, but whether General Jack- 
son knew of his predecessor's intention or not, he was cer- 
tainty not the man to be influenced by it. "I did hear," wrote 
Mr. Binney years afterwards, " that he sent an official friend 
to this city to inquire how the office would in my keeping 
' suit the Democracy of Pennsylvania,' and that the answer 
was not comfortable. My friend Baldwin got it, and I saw 
his letter to my friend Chauncey, in which he did me the 
honour to say that I deserved it, but that he wanted it 
more." 15 

In regard to the two unsuccessful applications of his 
friends Mr. Binney wrote to his son : 

There is a singular resemblance in some points between my 
expectation and my disappointment in each case, if expectation and 
disappointment it can be called. I declare with perfect sincerity that 
I never wanted either office, the chief -justiceship of the Supreme Court 
of Pennsylvania, or a seat on the bench of the United States, except 
as the elevated means of doing my duty, or rather of doing service 
to the public. If I had been called upon to accept either, I should 
have accepted it with a consciousness that I surrendered ease for 
labour, security for responsibility, and the delights of domestic life 
for a struggle for public favour. Had not these sacrifices opened 
to me a larger field of duty, I would not have thought an instant of 
making them. When I found that they were not asked of me, it may 
be supposed that I adhered with greater approbation of conscience 
to the pursuits of private life. 



15 Letter to S. A. Allibone, March 24, 1871. 
94 



1829-30] ACTIVE PROFESSIONAL LIFE 

By the death of Judge Tod, in March, 1830, the seat 
which Mr. Binney had declined in 1827 again became vacant, 
and Governor Wolf wrote to him as follows : 

Information has just been received here of the death of Judge 
Tod, of the Supreme Court. Should this report prove true, of which 
there can scarcely be a doubt, a vacancy will have occurred, which 
must be speedily filled. Will you, sir, consent to fill it? It is my 
earnest desire to give weight and character to our judiciary, whenever 
an opportunity shall be offered for that purpose; and as an earnest 
of that desire, permit me to say that it will afford me much pleasure 
to send you a commission, if you will say in reply to this that you 
will accept it. 

Mr. Binney had a high regard for Governor Wolf, con- 
sidering him one of the best governors that the State had 
ever had, perhaps the best of them all, and he had reason to 
believe that the governor had offered him the commission 
with a sincere wish that he should accept it, whereas Governor 
Shulze had apparently made a similar offer only because he 
could not well avoid it; but as regards the court itself the 
conditions were the same as in 1827, or possibly, since the 
death of Judge Duncan, even less to Mr. Binney's taste. 
Accordingly he did not hesitate to decline; and it was well 
for him, both personally and professionally, that he did so, 
though for reasons which he could not possibly have fore- 
seen. Within nine years thereafter the tenure of judicial 
office during good behaviour was abolished in Pennsylvania, 
and a fifteen years' term substituted. No change of any kind 
which occurred in Mr. Binney's lifetime was more abhorrent 
to him than this, except the further step of making the ju- 
diciary elective. He would never have consented to retain an 
office which he held to have been most seriously degraded by 
the change. Deep as was his resentment in 1838, and ever 

95 



HORACE BINNEY [JEt. 50-52 

thereafter, at the insult to the law, it would have been em- 
bittered by the reflection that he himself was one of the 
judges whom the majority of the voters of the State did not 
think worthy to serve by the time-honoured tenure of good 
behaviour. And yet his resignation would almost certainly 
have been ascribed to pique or party feeling, and would have 
subjected him to criticism, the utter injustice of which would 
not have rendered it any the more pleasant. All this he was 
spared by declining the judicial robe, but his choice proved 
wise in still another way, equally unanticipated. In 1830 he 
looked forward to a speedy termination of his active practice 
at the bar, and he would have thought nothing less probable 
than that the pinnacle of his fame as a lawyer would be 
reached fourteen years later. Had he gone on the bench he 
would never have argued the Girard Will case, for though he 
would have resigned in 1838, it is inconceivable that, with his 
ideas of the permanence of the judicial office, he would have 
returned to practice as that modern anomaly, an ex- judge, 
under any consideration whatever. 

By the year 1830 the strain of long-continued work 
began to tell upon Mr. Binney's health, and to his mind the 
change wrought by Chief Justice Tilghman's death had seri- 
ously affected the comfort and dignity of practice at the bar, 
so that he planned to gradually withdraw from court busi- 
ness. His wish to do so was intensified by the death of his 
oldest child, Mrs. Cadwalader, in October, 1831. From the 
day of her birth, when he was but twenty-five years old, she 
had been a part of all his happiness, of all his hopes. She 
was his constant companion, the intelligent and sympathetic 
confidante of all his feelings and opinions, so that he, who 
had leaned upon no one else, leaned upon her, and with her 
died the vivid interest in fife which he had previously felt. 
Publicity of any kind, even the moderate publicity of court 

96 



1830-32] ACTIVE PROFESSIONAL LIFE 

practice, became most distasteful to him, and his fixed habit 
of avoiding it as far as possible may be dated from this time. 
When, therefore, as the election of 1832 approached, 
Mr. Binney's friends urged him to become a candidate for 
Congress on the anti-Jackson ticket, he could not plead pro- 
fessional duties; and though public life had no attraction 
for him, he saw that it would give him the desired oppor- 
tunity to retire from active work at the bar. Aside from this, 
however, the political conditions of the day were such as to 
appeal to him as a citizen very strongly, so that the request 
for his services in Congress seemed to point to the pathway 
of duty. To a man of his strong Federalist principles Presi- 
dent Jackson was the incarnation of many of the worst charac- 
teristics of JefFersonian Democracy, besides displaying other 
objectionable qualities peculiar to himself. The establish- 
ment of the first United States Bank Mr. Binney held to be 
one of Hamilton's characteristically wise measures, proved to 
be so both by the stability of the currency during the life- 
time of that bank and its successor, and by the instability 
which prevailed in the interval between the two. A great 
financial centre, regulating and controlling the action of the 
State banks, it gave to the paper currency (the ratio of which 
to the metallic was then seven times that of England and 
sixty times that of France) a reliability such as had been 
attained in no other way, nor could be by any means then 
proposed. He therefore regarded Jackson's recent veto of 
the bill to renew the second bank's charter as most unwise 
and reckless, and in this view all the leading business men of 
Philadelphia practically concurred. To the call to defend 
the bank, the interest of his fellow-citizens, and Federalist 
principles, therefore, Mr. Binney turned no unwilling ear; 
but he frankly told those who offered the nomination that 
he could not represent the opinion then prevalent in the city 

7 97 



HORACE BINNEY [JEt. 52 

in favour of a protective tariff. They replied that they 
wished him to be their candidate, and would trust him as to 
the tariff and everything else. 

He made no campaign in furtherance of his own candi- 
dacy, but was the principal speaker at a meeting in the State- 
House yard on the afternoon of October 20 in support of 
the anti-Jackson electors. His address was a carefully 
reasoned exposition of the motives and tendencies of the 
Jackson administration, summing them up as the universal 
proscription of all opposition to the President's personal 
opinions and will, the prostration of the influence of all the 
departments of the government except that which he himself 
filled, and the concentration of all party affections in him- 
self, to the exclusion and sacrifice of every other object of 
political desire. In short, the address was a powerful arraign- 
ment of bossism. 

Two points in particular distinguish the address from a 
campaign speech of the present day. The first point was Mr. 
Binney's conviction that the fundamental principles of the 
government were at stake, and not any mere questions of 
administrative policy. He said, — 

The object [the defeat of Jackson] is, in my judgment, of 
surpassing magnitude, nothing less depending upon its attainment 
than the continuance of institutions indispensable to our country, 
and the preservation of the Constitution itself. Your right to attain 
it through the medium of a free election may, thank heaven, be still 
exercised with safety. How long it will continue so, or how long the 
enjoyment of it will be of any value to you, are questions upon which 
the short remainder of the present year will probably furnish mate- 
rials for a decisive judgment. 

There can be no doubt that these words were no rhetorical 
hyperbole, but actually represented the speaker's sincere 

98 



1832] ACTIVE PROFESSIONAL LIFE 

belief. The Constitution had been in force but forty-five 
years, and its strength was not yet fully apparent. In view 
of what Jackson had already done in overthrowing the pre- 
viously accepted doctrine of the permanency of the civil 
service, the pernicious effects of which overthrow are 
strongly felt to this day, it was but natural to fear that, if 
unopposed, he might proceed to overthrow the Constitution. 
Still, reasonable as the fear might then have seemed, one can 
scarcely conceive of its being entertained in regard to any 
President at the present day. The development of party 
machinery, controlled by unscrupulous bosses, has, it is true, 
made use of the very defective election laws of at least one 
State to throttle to a great extent the free expression of the 
popular will at elections, but this is exceptional, and only 
possible where partisanship is unusually strong; and what 
Mr. Binney referred to was not the action of a State machine, 
but of the national administration. 

The other point was Mr. Binney's view of the duties of 
electors. He seems to have believed that even at that day 
the electors could regard themselves as representing, as the 
Constitution intended they should, principles rather than 
men, and that they might vote in accordance with their best 
judgment and not necessarily for the candidates of their 
party. The candidates of the National Republicans (or 
Whigs, as they came to be called before the campaign was 
over) were Henry Clay and Mr. Binney's friend John Ser- 
geant; but while Mr. Binney admitted that the electors 
might reasonably be expected to vote for those candidates, 
he did not think them bound to do so. He therefore said, — 

For whom the electors will vote, if chosen by the people, is at 
this time in my judgment an inquiry that ought not to be made. The 
only thing it is needful to know is that they will vote against Andrew 
Jackson. Of this the knowledge is certain. This is the great end 

99 



HORACE BINNEY [Mt. 52-53 

of the present effort. This will be the great reward of the effort if 
successful. In this result you will find your present safety. All 
else it is the duty of patriotism now to regard as of subordinate con- 
cern. . . . The ticket proposed is an anti-Jackson ticket, and under 
that name, with the opposition which it proclaims on its face, let us 
one and all, my fellow-citizens, rally round it and sustain it. 16 

The speech was published in full in the United States 
Gazette with an editorial account as follows : 

His appearance in front of the stage was greeted with ani- 
mated shouts of the vast multitude. Mr. Binney held the delighted 
audience almost in breathless attention for nearly three-quarters of 
an hour, in which he depicted the evils of the present administration 
of the general government, pointed out the remedies, and urged the 
citizens to unity of action, with a power of eloquence never surpassed 
in this city. Those who had listened for years to Mr. Binney at the 
bar, and had grown up in admiration of his talents and eloquence, 
confessed that they had not until this meeting been able to appreciate 
his power of language. 17 

The Whigs carried the city by nearly five votes to their 
opponents' three, Mr. Binney receiving over three hundred 
votes more than his colleague on the Congressional ticket, 
Mr. James Harper, in spite of the fact that the latter was 
a protectionist. The State, however, supported Jackson, who 
had more than three-fourths of the entire electoral vote of 
the country. The fight in behalf of the bank was evidently 
destined to be an uphill one at best, but it cannot be imagined 
that this fact had any effect upon Mr. Binney's determina- 
tion to do his utmost when the time should come. 



18 It is true that the opposition to Jackson was not absolutely united, Wirt 
carrying Vermont as an anti-Mason, and Floyd receiving the electoral vote of 
South Carolina. Yet Mr. Binney's words necessarily imply a belief that the Con- 
stitutional theory of the status of electors was still to be regarded. 

1T United States Gazette, October 22, 1832. 

100 



1832-33] ACTIVE PROFESSIONAL LIFE 

In the interval between his election and the assembling 
of Congress a year later, Mr. Binney argued and won two 
cases in the United States Supreme Court, — viz., Magniac vs. 
Thompson and Lessee of Livingston vs. Moore. 18 In the 
first it was held that an antenuptial settlement could not be 
set aside as a fraud upon creditors unless both parties to it 
had knowledge of the fraud. The latter was the case which 
sudden illness had prevented Mr. Binney from arguing in 
the court below, so that it had been practically won by Mr. 
Sergeant alone, after he had " talked the clock down" on the 
first day of the argument, as related by Mr. Binney at the 
bar meeting held after Mr. Sergeant's death. It was an 
action of ejectment by the heirs of a former Comptroller- 
General of Pennsylvania to recover certain lands sold by the 
State under its hens on account of that officer's indebtedness 
to it, and Mr. Binney and Mr. Sergeant had been retained 
by the governor by authority of the Legislature. The State's 
sale of the lands was claimed to have been in violation of both 
State and Federal constitutions and the general principles 
of private rights, but the court held that all the proceedings 
of the State for the enforcement of its liens were legally 
unassailable, and that the purchasers had taken a good 
title. 

About the same time was argued the case of Girard vs. 
Philadelphia, 19 in which the Girard heirs established their title 
to real estate acquired after the date of their relative's will, a 
result which immediately led to the passage of the act of 
April 8, 1833, making a will speak from the date of the testa- 
tor's death. This is the case referred to by Mr. Binney in a 
note to his sketch of Judge Washington, apropos of atten- 
tion on the part of judges. " I have known one judge, who 



7 Pet., 348, 469. 19 4 Raw., 323. 

101 



HORACE BINNEY [MT. 53 

was a chief justice also, of considerable acuteness and of 
some name, who, on the bench, did not possess the faculty 
in any appreciable degree. He made few or no notes of 
either evidence or arguments ; and often, when thought to be 
employed in noting an argument, was scribbling caricature 
faces upon his paper. To so great an extent did this faculty 
fail him, that, on one occasion, when he understood that I had 
advised the plaintiff's suit, but had not been retained to speak 
in it, and he was not satisfied with the argument of the coun- 
sel at the bar, he asked me, as amicus curiae, to speak to the 
only point of law involved, which I immediately did, rather 
briefly. Three weeks afterwards I received a letter from 
him, informing me that my argument had satisfied the court, 
but that on sitting down to write the court's opinion, he 
found that he could not recall it, and asking me to restate it 
to him, which I did. He adopted it, and gave credit for it in 
his printed opinion." 



102 



1833] SERVICE IN CONGRESS 



VI 

SERVICE IN CONGRESS— EULOGY ON MARSHALL 

1833-1836 

THE Twenty-third Congress (often called the Star 
Congress, on account of the number of eminent men 
in both houses) met on December 2. The previous 
August, Kendall's tentative circular to the State banks had 
foreshadowed the removal of the government deposits, the 
next step in Jackson's war on the United States Bank, and 
the removal itself soon followed. This sudden rupture of 
the long-established business relations between the govern- 
ment and the bank was, in Mr. Binney's eyes, a gross viola- 
tion of the latter's legal rights, but this was almost as nothing 
compared with the effect of the removal upon the country 
at large, by necessarily involving a serious curtailment in the 
volume of business which the bank could safely carry on, and 
a proportionate contraction in the bank-note currency of the 
country. Had the bank been given a reasonable time in 
which to prepare for the removal of the deposits, the conse- 
quences, though serious enough, would not have been at all 
so disastrous; but the suddenness of the contraction which 
the removal necessitated, together with the great uncertainty 
as to the future of the currency, led at once to widespread 
commercial distress. Under these circumstances, it was in 
no cheerful mood that Mr. Binney betook himself to Wash- 
ington. 

That city had been for thirty-three years the seat of gov- 
ernment, but it was still the " City of Magnificent Distances," 

103 



HORACE BINNEY [Mt. 53-54 

and little more. The population was probably under twenty 
thousand, and residence there offered no attractions to culti- 
vated people. The journey from Philadelphia was usually 
made by steamboat through the Delaware and Chesapeake 
Canal to Baltimore, and thence by coach; but when the water 
route was closed by ice the whole trip was by coach. In either 
case it took most of two days, and in winter it involved con- 
siderable exposure. The life of a Congressman, even from 
so comparatively near a point as Philadelphia, meant exile 
for almost the entire session, and a Washington boarding- or 
lodging-house was a poor substitute for home to a man of 
domestic tastes. Devotedly attached to his family (to whom 
he wrote at least a few lines every day, with scarcely an ex- 
ception), Mr. Binney felt the separation very keenly, and 
the low spirits due to this cause found little consolation in 
the acts of the President and Congress. At that time, too, 
he underwent considerable physical suffering. In 1832, 
when the President removed the pension agency from the 
United States Bank, Mr. Binney was suddenly called upon 
for an opinion on the legality of the removal, and he spent 
an entire night in the examination of the statutes and au- 
thorities. The strain brought on a serious inflammation of 
the eyes, from which they had not wholly recovered when 
he went to Washington. He suffered greatly from his eyes 
during most of the session of 1833-34, while during the short 
session of 1834-35 he was rarely free from quinsy. Had he 
been able to feel that he was doing any real good in Congress, 
he would not have minded the sacrifice of health, comfort, 
and family life; but the very first weeks demonstrated that 
the current of prejudice and partisanship was probably too 
strong to make head against, and though he fought on as 
long as any ray of hope was left, he ultimately realized that 
he might as well have remained in Philadelphia. Aside from 

104 



1833-34] SERVICE IN CONGRESS 

the consolation which the performance of duty brings to 
every right-minded man, it is unlikely that any Congress- 
man ever disliked his life in Washington more heartily than 
did Mr. Binney. 

Thus, on the first day of 1834, he wrote: 

I will not now trust myself with the theme of the New Year. 
I wish you all multos et felices, and hope there will not be many in 
which the felicitations so common to the day will fall upon my ear 
so heavily as they have done upon this. I paid a few visits this morn- 
ing, as is the custom of the place: went first, in gratification of my 
own feelings, to Mr. Adams's, and afterwards to the President's, 
where there was an immense assemblage of every description of person 
and costume. When returning to go out of the presence chamber, I 
heard my name called by a sweet female voice behind me, and, as I 
turned, beheld with pleasure Mrs. Gordon (Emily Chapman) and 
her husband. She looked well, and was apparently as glad to see me 
as I was to see her : such a bond is there between acquaintances of the 
same city when they meet elsewhere. 

The business in the house lags and is heavy. Mr. Polk is not 
half done, and when he will begin the other half I cannot tell. I 
shall follow him, if desired, but it is all uncertain. 

Three weeks before this, on December 10, the Secretary 
of the Treasury's report in regard to the removal of the 
deposits had been referred to a Committee of the Whole. 
On the 12th Mr. Polk moved to reconsider the vote of refer- 
ence, in order that the report should be referred to the Com- 
mittee of Ways and Means, of which he was himself chair- 
man and to which Mr. Binney also belonged. Realizing the 
danger of allowing a committee with a majority presumably 
hostile to the bank to pass upon this report in the first in- 
stance, Mr. Binney opposed the motion. 1 He urged that the 



1 Cong. Deb., vol. x. 2173. 
105 



HORACE BINNEY IMt. 54 

Secretary's communication of his reasons to Congress was a 
part of the contract between the bank and the government, 
and was intended to give the bank the benefit of a review 
of the Secretary's order by Congress itself, acting as an ap- 
pellate tribunal. The Secretary could alone remove in the 
first instance ; his act removed the deposits ; his reasons were 
the justifications, if any there were; and the final judgment 
of Congress upon those reasons completed the course of the 
charter provisions for the security of the bank. The bank 
would not oppose an inquiry into its affairs or conduct for 
any proper purpose, but such inquiry had nothing to do with 
the course to be pursued in regard to the Secretary's report. 
The bank had a right by its charter to appeal from the Secre- 
tary to the House, but a further inquiry would constitute the 
House the prosecutor of the bank. The Secretary could not 
wish such an inquiry, as it implied that his own inquiry was 
inadequate, and that his allegations and reasonings were not 
good without further proof. 

After some days of debate Mr. Polk's motion to recon- 
sider was carried, and he then moved to refer the report to 
the Committee of Ways and Means, whereupon Mr. Mc- 
Dufne, of South Carolina, moved an amendment, instructing 
the Committee " to report a joint resolution, providing that 
the public revenue, hereafter collected, be deposited in the 
Bank of the United States, in conformity with the public 
faith, pledged in the charter of said bank." 2 This presented 
directly the question of the sufficiency of the Secretary's 
reasons, and led to a still more prolonged debate, in the 
course of which Mr. Binney, on January 7, 1834, and suc- 
ceeding days, addressed the House at considerable length. 3 



2 Cong. Deb., vol. x. pp. 2207, 2222. 

3 Ibid., pp. 2320, 2364. 

106 



1834] SERVICE IN CONGRESS 

His opening remarks show some of the intensity of his feel- 
ing upon the subject under discussion, and also contain a 
significant reference to his own independence of party, as 
well as to the fact, confirmed by contemporaneous letters, 
that he had already resolved, although the session was but a 
few weeks old, not to serve more than a single term. He 
said, — 

I mean to discuss this great question, sir, as I think it becomes 
me to discuss it on my first entrance into this House; as it would 
become any one to discuss it having the few relations to extreme party 
that I have, and being desirous, for the short time that he means to 
be connected with the station, to do or omit nothing that shall be the 
occasion of painful retrospect. I mean to discuss it as gravely and 
temperately as I can; not, sir, because it is not a fit subject for the 
most animated and impassioned appeals to every fear and hope that 
a patriot can entertain for his country, — for I hold, without doubt, 
that it is so, — but because, as the defence of the measure to be exam- 
ined comes to this House under the name and in the guise of " reason." 
I deem it fit to receive it, and to try its pretentions by the standard 
to which it appeals. . . . 

Mr. Speaker, the change produced in this country in the short 
space of three months is without example in the history of this or 
any other nation. The past summer found the people delighted or 
contented with the apparent adjustment of some of the most fearful 
controversies that ever divided them. The Chief Magistrate of the 
Union had entered upon his office for another term, and was receiving 
more than the honours of a Roman triumph from the happy people 
of the Middle and Northern States, without distinction of party, age, 
or sex. Nature promised to the husbandman an exuberant crop. 
Trade was replenishing the coffers of the nation and rewarding the 
merchant's enterprise. The spindle, the shuttle, and every instru- 
ment of mechanic industry were pushing their busy labours with 
profit. Internal improvements were bringing down the remotest West 
to the shores of the Atlantic, and binding and compacting the dis- 

10T 



HORACE BINNEY [JEt. 54 

persed inhabitants of this immense territory as the inhabitants of a 
single State. One universal smile beamed from the happy face of 
this favoured country. But, sir, we have had a fearful admonition 
that we hold all such treasures in earthen vessels ; and a still more 
fearful one that misjudging man, either in error or in anger, may, 
in a moment, dash them to the earth and break into a thousand frag- 
ments the finest creations of industry and intelligence. 

After briefly describing the currency system, he con- 
tinued : 

In an instant, sir, almost in the midst of the smiling scene I 
have described, without any preparation of the country at large, with 
nothing by way of notice but a menace, which no one but the bank 
itself, and she only from the instinct of self-preservation, seems to 
have respected, this most delicate of all the instruments of political 
economy has been assaulted, deranged, dislocated; and the whole 
scene of enchantment has vanished, as by the command of a wizard. 
The State banks are paralyzed ; they can do, or they will do, nothing. 
The Bank of the United States stands upon her own defence. She 
can do, or she will do, nothing, until she knows the full extent of the 
storm that is to follow, and measures her own ability to meet it. 
Prices are falling, domestic exchange is falling, bank-notes are fall- 
ing, stocks are falling, and in some instances have fallen dead. The 
gravitation of the system is disturbed and its loss threatened ; and, it 
being the work of man, and directed only by his limited wisdom, there 
is no La Place or Bowditch that can foretell the extent or the mischief 
of the derangement, or in what new contrivance a compensation may 
be found for the disturbing force. 

Sir, whence has come this derangement? It comes from the 
act of the Secretary in removing the deposits, and in declaring the 
doctrine of an unregulated, uncontrolled State bank paper currency. 
It is against all true philosophy to assign more causes than are suffi- 
cient to produce the ascertained effect. This cause is sufficient; that 
I verily believe has produced it ; and I hope for the patient attention 

108 



1834] SERVICE IN CONGRESS 

of the House in my humble efforts hereafter to show that nothing 
else has produced it. 

Sir, the Secretary of the Treasury has, in my poor judgment, 
committed one error which is wholly inexcusable; it is, in part, the 
error of the argument that has proceeded from the honourable mem- 
ber from Tennessee [Mr. Polk]. That error lies in supposing that 
there were but two subjects to be considered in coming to his decision 
upon the deposits, — the administration and the bank. The country 
has been forgotten. The administration was to vindicate its opin- 
ions. The bank was to be made to give way to them. The conse- 
quences were to be left to those whom they might concern; and they 
are such as moderate human wisdom might have foreseen, such as 
are now before us. While the administration is apparently strong 
and the bank undisturbed, the country lies stunned and stupefied by 
the blow ; and it is now for this House to say whether they will con- 
tinue the error, by forgetting the country here also, or will endeavour 
to raise her to her feet and assist her in recovering from the shaft 
that was aimed at the bank but has glanced aside and fallen on her 
own bosom. 

Mr. Binney proceeded to explain the operation of the 
bank-note system and the contraction of the currency in con- 
sequence of the removal of the deposits, and he then reviewed 
and answered the Secretary's reason in detail, finally con- 
cluding as follows : 

It ought not to be, it cannot be, that such questions shall be 
decided in this House as party questions. The question of the bank 
is one of public faith; that of the currency is a question of national 
prosperity ; that of the constitutional control of the currency is a 
question of national existence. It is impossible that such momentous 
interests shall be tried and determined by those rules and standards 
which, in things indifferent in themselves, parties usually resort to. 
They concern our country at home and abroad, now and at all future 
times ; they concern the cause of freedom everywhere ; and if they 
shall be settled under the influence of any considerations but justice 

109 



HORACE BINNEY [JEt. 54 

and patriotism, — sacred justice and enlightened patriotism, — the de- 
jected friends of freedom dispersed throughout the earth, the patriots 
of this land and the patriots of all lands, must finally surrender their 
extinguished hopes to the bitter conviction that the spirit of party is 
a more deadly foe to free institutions than the spirit of despotism. 

An attack on the removal of the deposits was of course 
an attack upon the President, who had instructed the Secre- 
tary to remove them, and had made no secret of his hostility 
to the bank. Moreover, Mr. Binney did not hesitate to con- 
demn the course pursued by the government directors of the 
bank, the President's appointees. At the same time the 
speech was purely an appeal to reason, and contained not a 
word of invective or abuse. With all his faults, " Old 
Hickory" 4 appreciated courteous treatment, and it is said 
that, having asked one of his friends about the speech, and 
being told, " He spoke very strongly, but he treated you 
like a gentleman," the President said, " Then you may ask 
him to dinner." What followed is best gathered from Mr. 
Binney's letter of January 10 to his son: 

I give you a little recital for the benefit of Mama; but in con- 
fidence, unless you hear of it elsewhere. A friend of yours dined 
yesterday with the President. When he entered the room the Presi- 
dent advanced, and, taking him by the hand, asked him to take a 
seat on the sofa by him, and began a familiar and friendly conversa- 
tion with him. As other gentlemen came in, the President rose, shook 
hands with them, and then returned to his chair and talk. The party 
amounted to about thirty, of whom eight or ten might have been of 
the party opposed to the President, the rest his friends. After sitting 
by the President's side as long as consistent with good breeding, your 
friend got up and walked across the room to engage in general con- 



* Mr. Binney said that " Old Peperidge" would have been more apt a name, 
as Jackson could neither be bent nor split. 

110 



1834] SERVICE IN CONGRESS 

versation with the guests, and was remote from the President when 
dinner was announced. The President then called your friend by 
name, approached him, put his arm into your friend's arm, said, 
" Let me have the pleasure of shewing you in to dinner," and then 
placed him at his right hand, where he shewed him, as his aids at the 
end of the table did, a succession of the most obliging civilities, of 
the most marked and striking kind, from the beginning to the end 
of a really excellent dinner in every possible sense. This was amusing 
enough. Your friend had just finished a three days' speech, battering 
down to the best of his poor abilities a good deal of the Cabinet doc- 
trines; speaking all manner of evil of it, but not calling any one a 
harder name than was necessary ; and all this civility I have no doubt 
was intended to shew a sense of the urbanity with which the argument 
was conducted. It makes quite a talk here, and I suppose will go 
further. 

It is reported that when Mr. Binney came to the White 
House, the President said, " Pardon me for taking the lib- 
erty to send for you, Mr. Binney, but I wish to say that I 
have read your speech, which is the most powerful that has 
been made on your side in Congress. I cannot, of course, 
thank you for the strength of your argument, but I am 
happy to know as an adversary one who does not conceive it 
necessary to employ invective against a public officer who 
believes that he, too, is discharging his duty faithfully." 

As a matter of fact, while this anecdote has some foun- 
dation, the President could hardly have said that he had read 
the speech. He may have seen a condensed report of it, but 
no complete stenographic report was made, and in order that 
it should be printed in full (which was then thought very 
important), Mr. Binney was compelled by his colleagues to 
write it all out, a task not completed until some days after 
the dinner at the White House. The speech was regarded 
as a forensic triumph, and congratulations poured in, but 

111 



HORACE BINNEY \_Mt. 5* 

were powerless to reconcile Mr. Binney to public life, as 
some portions of his letters to his son show very clearly. 

January 11. I am now writing out parts of my abominable 
speech. For all the praise of all the men that have lived or are to live, 
I do not think I would go through the labour of speaking this speech 
or writing it again. To speak it was bad enough, in all conscience, 
but to be forced to write it, in order to avoid disgrace, is too bad. 
I do not love praise enough for this, and, indeed, my mind has been 
so darkened by an incident of last autumn, that I almost hate to 
receive it. My conscience is my only praise, and that, as I well know, 
is no flatterer. Nothing is gained by praise. The more some men 
give of it, the more others hate you for it. You see I am very cynical. 
Mr. Sergeant, who writes me often (Mr. Chauncey never does), says 
he does not see now how I am to leave public life. I tell him that if I 
wanted bread, and Schively had a wheel, I would turn it in preference. 
If I could have passed my winter in Tristan d'Acunha with a chance 
of getting off in the spring, I should have preferred it. Public life ! 
Public death is the better name for it. No, I have tried to do my 
duty, and I have laboured more in two months to do it than some men 
do in two years. I mean to have done with it. 

January 15. As to my enviable situation, my son, when I shall 
derive my happiness from what I hear, and not from what I feel, and 
from the contradiction of all established habits and affections without 
contracting new ones, — above all, when I can be happy in a place 
where the greatest exertion does not attain the object it is directed 
to, and where the sight of our country's degradation is never a moment 
from before my eye, — then I may be happy in my present position. 
In the mean time the lament must be for the false estimate of happi- 
ness by the world, and not for the false constitution of mine. 

January 20. I find all my powers crushed under a weight 
of mechanical labour, from which I have made a positive determina- 
tion to escape. I am the slave of every man who wants anything 
done here, of any sort, public or private. I dread the mail as much 
as a negro dreads the whip of his driver. 

112 



1834] SERVICE IN CONGRESS 

February 4. We have had a brush again in the House to-day, 
and I had the good fortune to have the same attention given me as 
before. The party ranks were broken to some extent, and although 
we lost, it was by one vote only, — 107 to 106. It was a mere question 
to refer the President's message on the refusal of the bank to deliver 
over the books and money of the Pension Fund to the Girard Bank. 
Our motion was to refer it to the Judiciary Committee, the other to 
refer to the Committee of Ways and Means. The mortifying thing 
was that the absence of our own men from the House, as is supposed, 
lost us the vote. It was after five when question was taken, and this 
has been the question two successive days. You may imagine how this 
agrees with my health. 

February 5. The derangement of my health has perhaps 
alarmed you too much. The kind of life led here in the House is 
entirely out of the question. My mind is fully made up to it, and I do 
not mean further to expose my chance of future comfort in life by 
continuing at it. It is wholly impossible, and for reasons I will not 
commit to writing. My eyes suffer seriously, but I am in hopes 
to save enough of them for a basis on which to work a restoration 
hereafter. I intend if possible to return with Mr. Sergeant, but 
it is a lamentable condition to be unable to say whether this will 
or will not be practicable. It was beyond my power to conceive 
that the thraldom would be what it is. 



(To Hon. D.A.White.) 

Washington, 15 Feb. 1834. 

I wish that my disordered eyes permitted me to reply as I 
ought to your kind letter of the 8th, but the change of habits to 
which I had been long accustomed, and the necessity of using candle- 
light to a much greater degree than I have done for some years, have 
so deranged me that writing has become painful, and I avoid all of it 
that the business of my seat in Congress enables me to do. Still I 
have so much pleasure to counterbalance the pain, while writing in 
acknowledgment of your recollection of me, that I mention it now 

8 113 



HORACE BINNEY [Mt. 54 

only to introduce a request that you will again write to me without 
caring for a regular reply. The argument on the deposits has re- 
ceived more praise than it deserves, and principally, I believe, because 
its pretensions were not such as to provoke criticism. The state of 
things here is inconceivably bad. There is a want of knowledge, cer- 
tainly not surpassed in any State Legislature that I have known of, 
not meaning, however, to speak of particulars, but of the mass. Per- 
haps I ought to say a want of that kind of knowledge which the 
times require. There is, what is more to be regretted, a spirit of devo- 
tion to party that seems willing to surrender to it the Constitution, 
the laws, and the happiness of the country ; and this is not surprising, 
since the object of party devotion is party itself. The selfish prin- 
ciple rules and overrules everything, and men care not what they 
sacrifice to it, as they believe or hope that they are to be gainers by 
all they sacrifice. It is said by gentlemen in daily debate that the 
disease is idolatry, and that Jackson is the idol. This is a mistake: 
the idol is party, party ascendency and power, and he is at present 
only the priest, and I entertain no such expectation as that his death 
or retirement will bring men to their senses. Suffering may do so, 
for that will touch the diseased heart, and possibly soften it; but 
nothing else will cure the universal malady. 

I will not express my disappointment to you at the general 
condition of things in and out of the House as I discern it here. It 
is sufficient for me to say, and this you will regard perhaps as evidence 
that the malady has also infected me, that this is not the place for 
me, and that I must go back, as fast as I can, to the more useful as 
well as improving duties that I gave up to come here. I think of you, 
and have always thought of you since our college life, with great 
affection, and it will really add to my comfort while I stay here if you 
will occasionally let me hear from you. 

The debate over Polk's motion and McDuffie's amend- 
ment was the great debate of the session, and, in fact, the 
greatest that occurred during several sessions. It was par- 
ticipated in by many of the leading men on both sides of 

114 



1834] SERVICE IN CONGRESS 

the House, but ended on February 18 in victory for the 
Jackson party, as a letter of that date mentions. 

We did not sit later than half-past five yesterday, and I, of 
course, resumed my argument in the Supreme Court this morning, 
with some freshness and pretty good effect. 5 I went on till one, when 
the court adjourned in consequence of the death of Mr. Wirt. On 
my returning to the House, I found the call for the previous question 
on the deposits, which we lost by four votes, and this cutting off the 
instructions proposed by Mr. McDuffie, and leaving nothing but the 
question of reference to the Committee of Ways and Means, we lost 
that by a vote of 130 to 96, several of the friends of the bank voting 
for the reference, because, as one of them said, nothing else could be 
done with the Secretary's letter. Having had no hope before, I have 
no less now. 

A letter to Mr. Wallace, written on the 25th, gives some 
insight into the general situation as Mr. Binney viewed it. 

If any change is to be effected, it must be by the people, and 
not, I fear, by their present Representatives, either here or at Harris- 
burg. The pride of opinion, the shame of apparent inconsistency, 
and here the application of an influence of the most potent kind, keep 
the present Representatives, at least some of them, in opposition to 



5 Carrington vs. The Merchants' Insurance Co. (8 Pet., 495), a suit on a 
policy excluding liability for the consequences of seizure on account of trade in 
articles contraband of war. The contraband articles had been landed in Chile 
before the Spanish authorities seized the vessel, but as it had had false papers, 
the court held, under the English rule, that the seizure was authorized, and dis- 
charged the insurers. Referring to this case, many years afterwards, Mr. Binney 
wrote: "I once satisfied myself, and thought I had satisfied the Supreme Court 
(I did satisfy Chief Justice Marshall), that England has wrested (twisted) the 
old established law of nations as to contraband in her own favour. A predominant 
navy is a great law-maker on its own side. The Continentals are much more 
impartial, and more disposed to favour the weak, the neutral, and the peaceable, 
and so it ought to be." Apparently the chief justice was less influenced by Mr. 
Binney's argument than the latter had supposed, as the report of the case does 
not mention any dissent. 

115 



HORACE BINNEY [Mt. 54 

the known sense of their constituents. Still we are not without hope, 
as, indeed, who is? The great teacher is not only death, but disease 
which threatens death, and possibly the instruction may come in time 
to avert catastrophe. The doctors must not despair. 

On March 4 Mr. Polk presented the majority report 6 
of the Committee of Ways and Means, submitting four reso- 
lutions, — viz., that the bank should not be rechartered, that 
the deposits should not be returned to it, that they should be 
made in the State banks, and that the alleged corruptions 
and abuses in the bank's management should be investigated. 
On the same day Mr. Binney presented the minority report, 
which he had himself prepared, and which was also signed by 
Mr. R. H. Wilde, of Georgia, and Mr. Benjamin Gorham, 
of Massachusetts. The latter report reviewed the Secretary's 
reasons for removing the deposits, declared them insufficient, 
and stated that the deposits ought to be returned, whether the 
bank was to be rechartered or not. On March 12 the reports 
were taken up, and more debate followed, resulting in the 
passage of the Committee's resolutions on April 4. During 
this debate Mr. Binney wrote as follows : 

March 19. I do not write to you about politics, but I am 
satisfied that party will prevent the remedy of the disease that party 
has caused. Keep yourself out of it. I perceive it to be the miserable 
concern I have always supposed it. When I am asked to do anything 
again for public good, I will answer that I shall be ready to do it 
when there is either no leader at all, or only one, or, if you please, 
more who concur. The strength of the administration is in the ele- 
ments of which the opposition is composed, and they know it. 

March 23. I have no copies of the minority report, except 
what are placed on my table, a few at a time, but I will try to send 
you some. There has been a trick practised in regard to this report 



8 House Rept. No. 312, 23d Cong., 1st sess. The minority report is No. 313. 

116 



1834] SERVICE IN CONGRESS 

that is worthy of the men and of the times. Hitherto minority reports 
(which are a late invention) were regarded as part of the same docu- 
ment with the report of the Committee, numbered with the same 
number, printed and stitched together. But an order was given by 
a certain person to give the minority report an advanced number, by 
which the two reports became different documents, and are printed 
and stitched and sent separately, and consequently all who wish to 
have the majority side alone presented do not send the other. In 
general, the step has given dissatisfaction, but that is nothing. All 
I need say is, that I have not kept much of this kind of company. 
I am sorry the young men have come. The repetition of committee 
upon committee from our city 7 is not only a great annoyance, but — 
no matter. 

Although Mr. Binney was undoubtedly the champion of 
the United States Bank in the House, as regards the issues 
between it and the government, he was not connected with 
the bank, officially or professionally, in any way whatever. 
Hence on March 15 he successfully represented the other 
side in Bank of the United States vs. Donnelly, 8 a case in- 
volving the application of the lex fori to a suit on a note, 
even though the result of a suit brought in the State where 
the note was made would have been different. 

Up to this time the bank had consistently adhered to the 
policy of reducing its discounts and gradually curtailing its 
circulation (which exceeded $18,000,000) preparatory to 
winding up its business, unless the administration party 
should recede from its refusal to grant a new charter. Mr. 
Binney thoroughly approved this course, and while he had 



7 Meetings in favor of the renewal of the charter and return of the deposits 
were repeatedly held all through this winter, in Philadelphia and other cities, 
committees of citizens were perpetually arriving, and memorials being presented 
to Congress. Mr. Binney had little confidence in such demonstrations. 

18 8 Pet., 361. 

117 



HORACE BINNEY [JEt. 54 

no direct correspondence with the president of the bank, Mr. 
Nicholas Biddle, he was kept sufficiently posted as to what 
the bank was doing. The strain of Mr. Biddle's repeated 
declarations was this : " The Allegheny hills may come down 
to the sea, but we shall not change an iota of our plan. Our 
friends can rely upon it. Others may change, but we cannot, 
must not, will not." Accordingly, whenever any of Mr. Bin- 
ney's colleagues expressed a doubt of the bank's persever- 
ance, he had no hesitation in declaring his thorough confi- 
dence in it. If the bank was to wind up its business without 
loss, within the time allowed, the gradual contraction of its 
circulation was a necessity, while the effect of such a con- 
traction upon business was the surest means of arousing such 
a public opinion against the President's policy as would 
compel him to abandon it. 

Suddenly Mr. Binney learned that Mr. Biddle, at the 
instance of Mr. Gallatin and others in New York, had agreed 
to let the State banks extend their discounts without being 
called upon by the United States Bank for the balances due 
it, up to a certain time. This half-way measure was in effect 
a complete reversal of the bank's policy, and an abandonment 
of its only practical weapon of defence against the adminis- 
tration. From the day that the news came Mr. Binney never 
spoke again in the House in regard to the bank's affairs. 
The following passages are found in his letters written about 
that time. 

March 24. Such has been the extraordinary act of the Bank 
U. S. in making the agreement with the State banks at New York, 
that I am as much relieved from duty as if I were knocked in the head. 
My friend Mr. Chauncey has consented to a great mistake. I have 
written him and he has written me. Uaffaire est finie. I mention 
this that you may be on your guard. 

April 6. My investments are all as good as possible, but what 

118 



1834] SERVICE IN CONGRESS 

is to continue good is a question of deep, unfathomable doubt and 
uncertainty. There is so much nervous excitement here that at times 
I become affected myself, and think everything in danger; at other 
times, I cool myself in a quiet walk over the fields, and return with 
huge doubts as to the sober intellects of a great many on both sides. 
I have come to but one certain conclusion, and that is that my 
judgment as to political life has always been right. As a trade, it is 
a species of privateering under public commission. There is a dif- 
ference between the craft. Some are pirates and buccaneers, some 
piccaroons and marauders, some a gentlemanly highwayman, who 
robs with a grace, and makes you a present of part of your own goods 
of which he scorns to strip you. But all — all who follow the trade — ■ 
make a trade of it, and [the] trade has but one end, though the paths 
to it are various. 

April 9. I shall be heartily glad to get home, and pray 
Heaven I may never return here. If I had leisure, I would try to 
awaken this country to such a state of feeling as would make it 
thought infamous to stay from the polls on any account. Men take 
care of their parchment deeds and certificates of stock, and let rogues 
go to the polls and destroy them. The field is there. If that is won, 
this House will be ; if not, nothing here will restore the day. I speak 
for any portion of future time. Our children are disinherited by our 
supineness. 

April 12. You will see the speech of Mr. Adams (suppressed 
by the previous question) in the National Intelligencer of the morn- 
ing, and the obliging manner in which he speaks of me and of my 
argument, better than either deserve. I had a few days ago to differ 
with him and some others of our own side upon a small appropriation 
item to pay a clerk for arranging and making indexes to the Archives 
of Government in the Department of State. The discussion, which 
was sharply party, compelled me to speak, as I had determined to vote 
for it, and did not wish my vote misunderstood. 9 Many of the Jack- 
son men voted against it, some of our friends voted for it. Such is 



Cong. Deb., vol. x., pt. iii., 3566. 
119 



HORACE BINNEY [JEt. 54 

the state of feeling here, that it is probable we shall be a month on 
what used to be passed by the title. Unfortunately the debate began 
on the only item in the bill in favour of which I had said a word in 
committee. I regretted it, but I have that within which, if I stand 
alone, will make me do what I think right. 

In April Mr. Binney was able to spend a few days at 
home, and the next three letters relate to what occurred on 
the return journey. President Jackson's extraordinary 
" Protest" against a resolution of the Senate, condemning 
his proceedings " in relation to the public revenue," had ap- 
peared on the 17th, and had caused considerable excitement. 

Washington, 21 Apr. 1834. 
Dear H., — 

I am again safely here, having arrived last night at eleven. 
My journey was very pleasant, until we met the upward boat, which 
threw a letter on board from Baltimore, apprizing Webster of the 
preparation for him, and the consequence of which I foresaw as to 
myself. On our arrival we saw perhaps ten thousand persons lining 
the shores, flags flying, etc. Mr. Webster mounted the upper deck 
and addressed the multitude. I got out or was forced out of the boat, 
my baggage being taken I knew not where. After being hustled 
along to the outer verge, I heard my name called out to address the 
sovereign also; but being very desirous to avoid it, I went to the 
Exchange 10 and sat a moment with Mr. Everett on his way to Phila- 
delphia. I then started to rejoin my compagnons de voyage, and 
took my way to Barnum's. As I turned the corner, to my astonish- 
ment Mr. Webster was at it again, and the street covered with a dense 
mass of thousands. When he finished, the same cry went forth for 
myself, as they supposed I was in the house, and, being recognized, 
I had no alternative but to say a dozen words, which I have already 
forgotten. The excitement, hurras, etc., etc., were extraordinary, 
and evidence of extreme irritation. I ask absolution of my good 

10 The Exchange and Barnum's were then the leading hotels in Baltimore. 

120 



1834] SERVICE IN CONGRESS 

bishops for this Sunday's misconduct. Think of it, and think of 
what public life might make of me. When I got to Barnum's I was 
hot in every sense, and I scarcely knew myself any better than I was 
known. I am ashamed, and I am glad of it. 

Washington, 22 Apr. '34. 
Dear H., — 

Your No. 126 is received. I am glad to be advised of your 
welfare to the close of the day that I left you. I have nothing to 
say, but that a great alarm for my eye, in which I took cold in the 
heat of the Baltimore crowd and in the cool of the night ride, is 
abated: it is nearly well to-day. The Sunday's work has finally 
made me smile, while at first it made me frown. It was a queer affair, 
and I am happy to find by the papers that they have made sense of 
what I said. 11 



11 " Messrs. Webster and Binney arrived yesterday afternoon in the steam- 
boat 'Washington' from Philadelphia. Long before the steamboat touched the 
wharf the citizens assembled to the number of several thousands, and completely 
blocked up the approach to the boat. Mr. Webster addressed the people from 
the deck of the steamboat, but many endeavoured in vain to reach within hearing 
distance. After he concluded there was a general rush to Barnum's, where on 
his arrival he again spoke for a short time with his usual force and felicity. . . . 

" When Mr. Webster closed there was a general call for Mr. Binney, who 
appeared and delivered some pointed and patriotic remarks. He said he had no 
fears for the result of the present contest. The people were competent to keep 
their public servants within legitimate limits; that usurpations always commenced 
by tampering with the public funds; that so long as the laws were permitted to 
govern we possessed the means to restrain authority within proper bounds, but 
that if the laws failed to afford the remedy for abuses, the people possessed the 
physical power to maintain their rights; that the Constitution and laws of the 
country must be sustained, peaceably if it can be done, by force if it is necessary. 

" Mr. Binney made a happy allusion to the former prosperity of Baltimore, 
and the present depressed condition of trade, resulting from the experiment now 
making by the President. He concluded amidst the highest manifestations of 
satisfaction." (Baltimore Chronicle of April 21, reprinted in Poulson's Adver- 
tiser of April 22.) 

If Mr. Binney's irritation at being compelled to speak was at all manifest, 
it was ascribed wholly to his indignation at the President's course. He is said to 
have spoken with unusual warmth of manner and enthusiasm. 

121 



HORACE BINNEY [^Et. 54 

Washington, 24 Apr., 1834. 
My dear H., — 

. . . This Sunday's folly gives me more pain than it ought 
to. I alternately smile and frown. They are, I find, lying about it, 
as they do about everything ; you can readily imagine how one of my 
disposition feels under the connection between myself and any even 
involuntary abuse of the day. In those who know me perfectly it 
raises the suspicion of insincerity, and in those who do not it produces 
the belief that I am openly regardless of my duty. This letter you 
will of course see is written under the frown. 

On May 1 occurred a debate on an appropriation for the 
salaries of ministers to England and Russia. The Senate 
had not confirmed the President's appointments, and it was 
generally understood that he intended to commission the 
ministers after the adjournment. Mr. Binney held that such 
an act would be an unconstitutional trespass on the Senate's 
prerogatives, and he opposed the appropriation, but it was 
carried. 

The most important contested election of this Congress 
was that of Mr. Letcher, of Kentucky, an ardent follower 
of Clay, and afterwards governor of the State, against Mr. 
Moore. The majority of the Committee on Elections had 
reported in favor of destroying Letcher's majority by 
striking off certain votes, cast by admittedly qualified voters, 
on account of a failure of certain election officers to comply 
strictly with the law, though the irregularity was not claimed 
to have influenced a single vote. The Committee of the 
Whole reported that no decision could be made in favour 
of either party, and on June 11, when the question was before 
the House, Mr. Binney spoke against the report. 12 He 
pointed out that it was the constitutional duty of the House 



Cong Deb., vol. x. pp. 4451, 4802-4819. 
122 



1834] SERVICE IN CONGRESS 

to decide the case upon the evidence, which was all before it, 
and made an exhaustive argument on the constitutional 
rights of voters, which he contended could not be taken away 
by official errors. The principles which he expounded were 
new to most of his hearers, but they were such as should 
always control the decision of election cases, especially to-day, 
when the official ballot system, by increasing official duties, 
has necessarily increased the risk of errors for which the 
voters are in no way responsible. Partisanship defeated his 
efforts, however, as it did in nearly every instance during 
his short Congressional career, and the committee report 
was adopted; but the victory was a barren one, as Mr. 
Letcher was triumphantly re-elected. A letter of June 13 
says, — 

We had yesterday a considerable dinner party, which termi- 
nated half-past eleven p.m., at our mess. Webster and myself being 
side by side, I told him what you said of his speech. You will have 
as much notion of what I last said in Letcher's case on Wednesday, by 
the sketch in the National Intelligencer of this day, as you would of a 
house by seeing one of the bricks. I spoke half an hour con ira and 
con amore too, and as an impromptu I was not dissatisfied with it. 

On June 21 Mr. Binney spoke in regard to the bill to 
regulate the coinage, fixing that ratio of sixteen to one which 
in recent years has been so sacred in the eyes of Mr. Bryan 
and the Populists. It seems strange to read an argument 
against this ratio as too favourable to gold, the ratio of actual 
value at the time being 15.625 to 1. Viewed by the light of sub- 
sequent experience, Mr. Binney' s speech shows the practical 
impossibility of long maintaining two legal tenders in circu- 
lation at the same time when neither is limited in quantity, but 
even he did not seem to have yet realized this, and the speech 
is distinctly in favour of a double standard at the market ratio. 

123 



HORACE BINNEY [Mt.5* 

His amendment was adopted, requiring a certain number of 
the gold coins of each year to be reserved and assayed to test 
their fineness. Nearly sixty-one years later he recalled some 
incidents of this debate, as follows: "When Tom Benton 
brought in his bill to debase the gold coin, to keep it from 
flowing to Europe, and supported an elaborate scheme based 
upon that idea, I examined the matter with some care, and 
was clear that it violated some truths of history and finance, 
but I hardly expected to speak, until J. Q. Adams came to 
my seat one day and said, ' Mr. Binney, are you not going 
to speak on this subject?' I replied that I thought speaking 
would do no good, but the next day, I think it was, I took the 
floor. The House was not more than a third full at the time, 
but they listened to me with great attention in a speech of 
perhaps an hour and a half. When I had done a gentleman 
took the floor to speak on the same side. The House sud- 
denly filled as if by magic. Every member was soon in his 
seat, when they commenced such coughing and scraping of 
feet that the member could not go on. Then they called for 
a vote, and passed the measure without a pause. Here was 
an organic conspiracy to carry through this party measure 
without reference to argument or the honour of the country. 
It made an impression on me at that time, and showed how 
thorough party training had even then become." 13 

During this season Mr. Binney's seat was next that of 
Edward Everett, whom he knew well and esteemed highly, 
though not sharing all his views. He also necessarily saw 
much of Webster, the leader of the bank's cause in the Sen- 
ate. While Mr. Binney had the highest regard for Web- 
ster's abilities, and would gladly have seen him President, 
thinking the failure to nominate him in 1836 a grave political 



13 Memoir of Henry Armitt Brown, by J. M. Hoppin, p. 106. 

124 



1834] SERVICE IN CONGRESS 

error, he realized that Webster's chronic " Presidential fever" 
was a serious malady. He said to him once, openly, in the 
presence of Clay and others, " You can be the king of this 
country if you will simply let it be known that you are un- 
alterably resolved never to be a candidate for the Presi- 
dency. You will always be Senator from Massachusetts, and 
such will be your hold on the people everywhere, by reason 
of your extraordinary ability, that you will have, while you 
live, the power of selection. You will be the Warwick, the 
king-maker." 

With Calhoun also Mr. Binney was on good terms, 
widely as their views differed in regard to State rights and 
slavery. Years afterwards, when Calhoun's doctrines were 
about to be carried out in secession, Mr. Binney was able to 
recognize, from what Calhoun had told him, the fundamental 
character of the issue between the North and the South. It 
would be too much to say that in 1834 he foresaw the Civil 
War, but he fully realized even then that in the unhealthy 
state to which the intensity of party spirit had brought the 
country no satisfactory settlement of the slavery problem 
was possible. The impressions produced by the session as a 
whole may be summed up in the following letter to Mr. Wal- 
lace, written in November: 



I am obliged by what you say in regard to the sketch of my 
remarks in Letcher vs. Moore. It is a little remarkable that the prin- 
ciples should have struck the House as new. New or old, good or bad, 
it is the same thing. We have long thought alike as to tendencies. 
When I consented to go to Congress I was for a moment deceived. 
I thought I saw evidence of convalescence, and was mistaken. Since 
the correction of that mistake, I have never yielded to a second de- 
lusion. Even the appearance of last winter did not mislead me. I 
have therefore washed my hands of it. I ought to say my fingers, for 

125 



HORACE BINNEY [JEt. 54-55 

I never got deeper than the first joint. The fittest language for men 
who have anything on board is, perhaps, the language of shipwreck, 
suave qui peut. 

At the short Congressional session of 1834-35 the matter 
uppermost in men's minds was the likelihood of a war with 
France. In 1831 France had agreed by treaty to pay a large 
indemnity on account of depredations upon American com- 
merce during the Napoleonic wars, but the Chambers had as 
yet taken no steps towards payment. The King had prom- 
ised to appeal to the Chambers for the requisite appropria- 
tion, but had not yet done so, and the President's message had 
impugned the King's good faith. Relations were strained in 
consequence, and for a time war seemed extremely probable. 
Mr. Binney's brief letters to his son contain some allusions 
to the controversy, as well as to the administration's bill to 
provide for the deposit of public funds in State banks, and 
other matters which came up during the session. 

December 14. My impression is that we shall have war with 
France in due time. The French minister takes the message in bad 
part, and I suppose so it will be taken. He declined the President's 
invitation to the usual diplomatic dinner, and says that if he belonged 
to the Chamber of Deputies he would not vote the appropriation for 
the treaty until the menace of the message should be recalled; and 
Congress will not recall it, but sustain it, at least in the House. The 
President's design in all this it is impossible to fathom. 

On December 14 Mr. Binney supported a resolution to 
remit the import duties on locomotive engines, car-wheels, 
axles, springs, and other forms of railroad iron already im- 
ported or to be imported within two years. The measure had 
nothing to do with protection, as the articles in question were 
not made in this country, and it was merely a temporary aid 
to railroad enterprise, then in its infancy. The measure was 

126 



1834-35] SERVICE IN CONGRESS 

lost, probably for no better reason than that which now up- 
holds the tariff on foreign works of art. 

January 10, 1835. I spoke for about an hour to-day upon a 
claim of Commodore Hull, 14 as honest and just a claim as ever was 
stated; but Amos Kendall and the President would have been put in 
fault by its success, and there was no possibility of saving it. I doubt 
whether I shall again open my mouth during the session. 

January 26 [in regard to an application of some acquaintance 
for an office]. No son of mine will have my approbation to any sort 
of connection — military, naval, civil, judicial, or otherwise — with this 
government while it remains as it is, unless he has an independence 
of fortune that will enable him to turn up his nose at it, and his back 
upon it, whenever his honour requires it. 

January 30. The House has had no session yesterday or 
to-day on account of the death of a member. Since I have been here 
one man, an habitual drunkard, blew his brains out; two have died, 
notorious drunkards and one of them shamefully immoral. The hon- 
ours are given to all, with equal eulogy and ceremonial. 

January 31. You have heard of the madman's 1S attempt on 
the President. I thank Heaven it did not succeed. I believe nothing 
can be made of it but mere insanity. 

February 7. If you will look at the National Intelligencer of 
Monday, you may find something to justify the opinion I have ex- 
pressed of the great uncertainty of peace. A debate has sprung up 
to-day of a very singular character, begun, as on a former occasion, 
by Mr. Adams, and for a while it threatened great violence. It has a 
little cooled off, but the embers are beneath. The debate has been 
mainly with the administration men and the Committee of Foreign 
Relations. My impression is that the doubts of most may be ulti- 
mately changed by the violence of a few. Still, I may be mistaken, 
and therefore will say nothing as from me. 



14 Commander of the " Constitution" in the War of 1812. 

15 A man named Lawrence, who fired twice at the President, the cap of his 
pistol failing to ignite the powder either time. 

127 



HORACE BINNEY [JEt. 55 

February 9. Notwithstanding my determination, I have been 
to-day drawn into a speech on the Ohio boundary line, in which I 
stand pledged for more. It is a fine question, and I am thoroughly 
prepared, but I loathe the operation in that House, tho' always most 
kindly listened to. I shall be glad when the session is over. 

February 15. I hope to get home without another bout of 
quinsy, but I have my doubts. I have had sore throat nearly all the 
winter, in a quite unusual manner, sometimes very bad when I went 
to bed, and gone or nearly so in the morning. My fear is now that 
a bad attack may keep me out of the House to-morrow, when the 
deposit banks bill comes up, but it must be pretty bad to do that, 
after once already in Letcher vs. Moore speaking with it on me. I 
mention this merely to keep you from thinking, as the Irish soldier 
charged the Frenchman with thinking, that nobody was killed but 
himself. 

The question came up on the 12th, when Mr. Binney 
argued against the measure in its original form, and pro- 
posed certain amendments, which were adopted, but after- 
wards reconsidered. 

February 19. The rogues reconsidered me to-day on the 
deposit question, though I made a more conclusive argument to-day 
than on Thursday last. But I am quite indifferent. My amendment 
is still before the House. I have been drawn from my shell against 
my will, and except for the Ohio question shall not again leave it. 
So I think, though the friends around me will not leave me always 
free. 

February 20. My friends here say that the Deposit Bill is 
destroyed, and at least the enemy put to open shame. 16 I do not 
believe either. 

February 21. The news from France has agitated all who 
did not expect it. You have known my expectations from the begin- 
ning. You ought to know that my expectations of difficulty are not 



16 The bill was not brought to a final vote. 
128 



1835] SERVICE IN CONGRESS 

much increased by the late news from France, that is, I do not believe 
France is so enragee as she seems. What is to be the immediate action 
of Congress I cannot tell. My neighbour must, I believe, prepare 
for an extra session. My lot will be to suffer, not to do. There is at 
present no intelligence from our minister in France; but it may be 
expected hourly, and then, or perhaps before, we shall again be 
prompted from the White House. 

February 23. The French news has shortened some faces pro- 
digiously. My own is pretty much of its former dimension. Every- 
thing here has satisfied me that the message has always been a most 
uncomfortable thing for the friends of the President. It has placed 
them in a position of great embarrassment, and they will be party- 
cally, as I shall be personally and politically, happy, if they can get 
out of the scrape along with the country. My happiness, however, 
will be increased by the safety of the country, and not of the party. 

February 25. My time, tho' I rejoice that it is nearly expired, 
has been far less unpleasant than formerly. The position I hold 
here it would be agreeable to you to know. It has arisen from con- 
sistency, which even with those of moderate capacity, if accompanied 
with good manners, is of itself a considerable power. Meaning to 
disconnect myself from active party politics, I am of course gratified 
at leaving with a sentiment, in the members of the House, of some- 
thing very like general good will. It would have been a pity to spoil 
what little reputation I have by two years of unwilling residence at 
this place. 

February 26. I must stay here to the end. It is, however, 
to vote, for anything else is impossible. The disorder of the House 
is inconceivable: every one is rising at the same time to get in or on 
his bill or resolution, and no progress is made. I presume some of the 
necessary appropriation bills may fail, and it will be well if there is 
nothing worse. 

February 28. We are in committee on the French relations, 
on which I do not intend to speak. The fact is that true wisdom, 
safety, and honour all direct the same course of saying nothing, and 
no one can safely trust himself with giving the reasons. We are in 

9 129 



HORACE BINNEY [^St. 55 

a predicament of great difficulty from speaking rashly, and it ought, 
I think, to be left to run itself clear, the only way in which it can 
become clear, and every attempt to make it clearer will only trouble 
the waters still more. 

On March 2, however, Mr. Binney was compelled to 
break his resolution of silence, and he spoke at some length 
upon the relations with France. After reviewing what had 
taken place, he summed up the situation as follows : 

On the one side, sir, there has been a failure in a punctilio 
of time; on the other there has been a failure in a punctilio of per- 
sonal courtesy — of courtesy to the person of the King, and possibly 
to the nation, but still a punctilio. And thus this nation is to forego 
the unanswerable claim that she has to a substantial performance of 
the treaty, and both nations are to forget their ancient friendship 
and the present and perpetual sameness of their great interests, com- 
mercial and political, to go to war upon punctilios of time and 
courtesy. 

He argued that there had been no actual refusal to carry 
out the treaty, and hence no cause of war; that the delay 
necessitated further negotiation, which should be left to the 
President to carry on; and that Congress should not take 
action. The resolutions were adopted, however, but fortu- 
nately France took them in good part, and no harm resulted. 

March 3. I had to speak yesterday on the French question, 
and got two things for my pains, — great praise and a severe quinsy. 
Whether I shall now be able to get on to Baltimore to-morrow is 
uncertain. I had to leave the House last night, and unless I am sent 
for I shall not go to-day. 

March 4. [From Baltimore.] I have come hither to-day. My 
throat is no worse, and on the contrary a little better; but there are 
no means of advancing, either by the Chesapeake or by Columbia 
and the railroad. I have, however, a comfortable parlour and cham- 

130 



1835] SERVICE IN CONGRESS 

ber at Barnum's, and here I may stay till two hundred members of 
Congress have evacuated the place, as I am not one of those who will 
ride on the outside of a stage, nor go with fifteen ins on three seats. 
Now that Congress is over, I am patient, and that is what I have not 
been in verity for nearly two years. I said a word to you about my 
speech on the French resolutions. I had thanks and commendations 
an all sides, some very extravagant, but others most gratifying. Mr. 
A.dams, who quoted some lines of Milton against me, without the 
least imaginable application (for he was on the borders of I will not 
say what ) , said it was splendid as well as able ; but the source of my 
principal gratification was that in a house full there were a dozen 
Philadelphians who saw the House as silent as a church for three- 
quarters of an hour. They have given me the opportunity I wished 
of closing my connection with such public life as this. . . . Tell 
Mama I will come as soon as I can, and hope hereafter to be my own 
man and hers, more than I have been for thirty months. 

On July 6, 1835, Chief Justice Marshall passed away, at 
but a few months less than eighty years of age; and on his 
birthday, September 24, Mr. Binney delivered before the 
Councils of Philadelphia a eulogy on the life and character 
)f the great chief justice. The task of writing it was as 
thoroughly congenial as in the case of the Tilghman eulogy 
sight years before, for although in Marshall's case Mr. Bin- 
ley had not the inspiration of personal acquaintance and 
friendship to at all the same degree as in that of Tilghman, 
its place was fully taken by his devotion to Marshall as the 
nan who, more than any other, had claimed and won for the 
Supreme Court its lawful position as the final arbiter in the 
nterpretation of the Constitution and the statutes, and a 
strong bulwark against the disintegrating tendencies of the 
State rights doctrine, as well as the usurpations of unconsti- 
tutional authority by Congress itself. Moreover, as Mar- 
shall's work was done in a broader and more exalted field 

131 



HORACE BINNEY [JEt. 55 

than Tilghman's, the new subject demanded of the writer 
a correspondingly broader knowledge, both legal and his- 
torical, and a more perfect grasp of the principles of law 
as connected with government. Fortunately Mr. Binney was 
able to meet these requirements, and it cannot be doubted that 
his recent life in Washington had taught him to appreciate 
Marshall's achievements even better than before, as he ob- 
tained a closer view of the workings of the government, and 
realized more completely the recklessness of party spirit and 
the necessity of some effectual restraint upon both the Ex- 
ecutive and the Legislature. His tribute to the great Chief 
Justice of the United States was certainly not less adequate 
than was that to him who had filled with honour the lower 
station of the head of a State court. 

The eulogy on Marshall is more than an appreciative and 
illuminating sketch of the life and character of a single man. 
It is a eulogy of the Constitution as a practical and powerful 
guarantee of the liberty of the citizen and the stability of 
the nation. It is an exposition of the Federalist ideal, the 
grandest and noblest ideal of government which, to Mr. Bin- 
ney's mind, the world had ever seen. But recently an eye- 
witness of bitter party strife, and of the clashing of the 
interests, real or supposed, of the different sections of the 
country, he seized the occasion to point to the Union, estab- 
lished by the Constitution, as the only ark of safety; and 
as it were with prophetic voice to foretell the inevitable result 
of any attempt at national dissolution. 

While we think with just affection, my fellow-citizens, of that 
State at whose bosom we have been nurtured, whose soil contains the 
bones of our fathers, and is to receive our own, and reverence her for 
those institutions and laws by which life is ennobled, and its enjoy- 
ments enlarged, far from us be that purblind vision which can see 
nothing of our country beyond the narrow circle in which we stand. 

132 



1835] EULOGY ON MARSHALL 

rhe Union is our country. The government of the Union is our 
>wn. It breathes our breath. Our blood flows in its veins. It is 
inimated with the spirit and it speaks the voice of the whole people. 
We have made it a depository of a part of that liberty with which the 
valour of the Revolution made us free; and we can never review the 
vorks of this illustrious tribunal, since Chief Justice Marshall has 
jeen at its head, without gratitude to Heaven that it is the guardian 
)f that part which alone could enable us in our separate communities 
;o destroy the value of the rest. 

What were the States before the Union? The hope of their 
memies, the fear of their friends, and arrested only by the Constitu- 
;ion from becoming the shame of the world. To what will they return 
dien the Union shall be dissolved? To no better than that from 
vhich the Constitution saved them, and probably to much worse, 
rhey will return to it with vastly augmented power and lust of domi- 
lation in some States, and irremediable disparity in others, leading 
:o aggression, to war, and to conquest. They will return to it, not as 
strangers who have never been allied, but as brethren alienated, em- 
Dittered, inflamed, and irreconcilably hostile. In brief time their 
lands may be red with each other's blood, and horror and shame 
;ogether may then bury liberty in the same grave with the Constitu- 
;ion. The dissolution of the Union will not remedy a single evil, and 
nay cause ten thousand. It is the highest imprudence to threaten 
t; it is madness to intend it. If the Union we have cannot endure, 
;he dream of the Revolution is over, and we must wake to the cer- 
;ainty that a truly free government is too good for mankind. 

While Mr. Binney was undoubtedly filled with enthu- 
siasm for Marshall and his work, he was not the man to speak 
yrer the heads of his audience. It may therefore be assumed 
that that audience was not merely in accord, in the main, with 
[lis principles, but was composed of men who could appre- 
ciate the beauty of his discourse, and in whose hearts his 
Lofty sentiments would strike a responsive chord. It is a 
most significant commentary upon the difference between 

133 



HORACE BINNEY [JEt. 56 

that day and the present that the nucleus of that audience, 
those whom the speaker was primarily addressing, were the 
Select and Common Councils of the city of Philadelphia. 

The following winter Mr. Binney reargued a case which 
has since become a part of the hand-book law of the Penn- 
sylvania student, — Ingersoll vs. Sergeant, 17 argued origi- 
nally, by the same counsel on both sides, six years before. 
On replevin for arrears of ground-rent, it was contended 
that a release of a part of the ground from the payment of 
the rent extinguished the rent altogether, although the deed 
undertook to reserve all the releasor's rights as regards the 
rest of the ground; but the court sustained the view (taken 
by Mr. Binney and Mr. Chauncey) that a ground-rent in 
Pennsylvania was not an English rent-charge, but was ap- 
portionable, so that the release extinguished only so much of 
the rent as was proportionate to the value of the land re- 
leased. In delivering the opinion of the court, Kennedy, J., 
took the position that a ground-rent was a rent-service as at 
common law, and that the statute of quia emptores had never 
been in force in Pennsylvania at all. This doctrine has been 
the subject of much criticism, and it is significant that Mr. 
Binney seems to have confined himself to the view that a 
ground-rent was " in character analogous to a rent-service, 
. . . and ought to be governed by the rules applicable to that 
species of rent." 

In April, 1836, Mr. Binney resigned from the Board of 
Trustees of the University of Pennsylvania, after having 
long been one of the most active members of that body. 
Taking a keen interest in the institution, he had wished to 
see it a great centre of higher education for Pennsylvania 
and the adjacent States, as Harvard was in Eastern New 



1T 1 Whart., 337. 
134 



1836] INGERSOLL vs. SERGEANT 

England and Yale in the more western portion. The broad 
training which such an institution would give was, he con- 
sidered, the fundamental reason for the University's exist- 
ence, and he always opposed the policy of devoting its re- 
sources to building up the Medical School at the expense of 
the college proper, the Department of Arts. If the men 
of Philadelphia, he thought, were furnished with a thorough 
college education, they would see the advantage of profes- 
sional schools, and would support them; but a university 
strong in medicine and weak in arts was, to his mind, an 
inverted pyramid. Had he succeeded, in 1833, in inducing 
his friend John Pickering to accept the provostship, a change 
might have resulted; but finally he found the influence of 
the medical faculty too strong to be overcome, and resigned, 
Messrs. Sergeant and Chauncey also leaving the board at 
about the same time. 



135 



HORACE BINNEY [Mt. 56 



VII 

EUROPEAN TOUR 

1836-1837 

IN May, 1836, the health of Mr. Binney's daughter 
Esther necessitating a sea voyage and change of cli- 
mate, he took her to Europe, along with his niece, Miss 
Wallace. They returned in June, 1837, and soon afterwards 
he wrote out, from notes taken at the time, supplemented by 
letters, a very complete record of the tour, and of the impres- 
sions which the various places and people had made upon 
him. 1 The object of the journey confined him to the beaten 
track, but the whole system of European travel has been so 
revolutionized since that time, many of the places visited have 
been so much altered, and even the condition and habits of 
the people have, in some countries, undergone such changes, 
that to those who are only familiar with the Europe of to-day 
the record of such a journey reads almost as if it had been 
taken in another part of the world. With the sailing-vessels 
of that day, crossing the Atlantic was a serious matter, con- 
suming far more time than now, to say nothing of the greater 
risk. Though meeting with no accident, nor any really severe 
weather, Mr. Binney was sixty-eight days on the water going 
and returning, as much time as many people now allow for 
an entire European trip. Under these circumstances it is not 
surprising that, having previously travelled but little, he had 
none of the spirit of the " globe trotter" of to-day, and would 



1 The journal would probably fill two octavo volumes. Only some of the most 
characteristic portions are inserted in the present memoir. 

136 



1836] VOYAGE TO EUROPE 

probably never have visited Europe at all from any mere love 
of travel or desire for his own recreation. Italy had, indeed, 
been the subject of his " dreams night and day from boy- 
hood," but it was rather the Italy of Horace and Virgil, of 
Cicero and Livy, the Italy of Dante 2 and the mediaeval re- 
publics, than that of Gregory XVI. and the Bourbon kings 
and Austrian archdukes. He was too old for extravagant 
rapture over the sights, scenery, or life of Europe, and he 
had no tendency towards the so-called cosmopolitanism which 
often leads travellers to depreciate their own country ; but his 
active and well-stored mind enabled him to enter fully and 
appreciatively into all the pleasures of travel, and to retain 
and record clear impressions of what he heard and saw. 

Leaving New York on May 3, in the ship " West- 
minster," six hundred and fifty tons, the party landed at 
Falmouth on the 31st, when their first impression was of 
the severe aspect of the Cornish coast, even in fine weather. 

" As it was from this port (Falmouth) that the ' May- 
flower' with the Plymouth colonists departed for America, 
I could not help remarking that our Puritan ancestors could 
have met nothing more forbidding on the coast of New Eng- 
land than they left behind them. With their recollection of 
the hard doings of many of their countrymen, and the hard 
cliffs of their country which met their last looks, strong must 
have been their love of country still to regard them both with 
affection. But the mother's bosom, hard as it may be to 
others, is always soft to her children. 3 



a " Let me say that I love that hard-headed, and deep-hearted, and large- 
livered man Dante as well as you or any man can; not that I understand him as 
well. I read all that I could get of him in Italy, on the spot and spots, and with 
benefit of scenery and footlights." (Letter to Dr. Lieber, December 14, 1861.) 

8 That the love of the early New Englanders for the mother country had 
descended to Mr. Binney in as full a measure as was possible for one who was 
devotedly attached to America, the pages of his journal bear witness, those por- 

137 



HORACE BINNEY [iET. 56 

" We landed after breakfast and stood fast for the first 
time on England's fast island. Wewere all, of course, in 
buoyant spirits, not only disposed to enjoy everything, but 
incapable of any other sensation, and after the Custom- 
House was passed, where we found despatch and civil treat- 
ment, I reconnoitred the town, especially the suburbs, the best 
quarter to learn the condition and character of the people. 
In the direction which I first took, towards the castle of Pen- 
dennis, the cottages were in that taste which I afterwards 
found so common in England. Little enclosed spots were 
before most of them, with geraniums, roses, the arum, and 
other flowers in bloom in the open ground (not in pots) , and 
honeysuckle and other trailing shrubs trained up the walls 
and by the sides of the doors. Flowers were to be seen on 
all sides, and the laburnum with its clusters of yellow blos- 
soms. Every sense was regaled. Where there was hardly 
the evidence of comfortable subsistence, there were still clean- 
liness and the love of flowers. . . . 

" On the following morning, at half -past six, my party 
left Falmouth in a post-chaise and four for Exeter, one 
hundred miles distant, under bright skies and with a balmy 
air, and were destined to enjoy, on this first day, the full 
delight of English travelling. All nature was in her best 
attire, and a more beautiful nature than was before us a great 
part of the day I never beheld. Our vehicle was perfect for 



tions which relate to England being manifestly written with a more sympathetic 
pen than the description of the Continental tour. Perhaps his remark on the 
scenery of France, England, and America may in some measure be taken as a 
general expression of his attitude towards his own and foreign countries: 

" I am compelled to say that ' La belle France' is an expression that implies 
the admiration of the children rather than the beauty of the mother. I did not 
think her half as handsome as my mother, and she was no touch at all to my 
grandmother, who, by means of a fine taste in dress, looks something handsomer 
than her daughter." 

138 



1836] EXETER 

the purpose. The front and one-half of the body on each 
side had glasses, to give us the full sweep of the horizon, and 
there was no seat in front to intercept the view. The post- 
boys with their scarlet, or blue, or buff jackets, white or 
yellow breeches, and their fair top-boots, danced with an 
animated hitch in the saddle to the stroke of the horses' feet, 
over roads on which there was not a stone as big as a filbert, 
and with a pace never less than ten miles an hour. We were 
of course ushered at once into the beatitude of posting. 
When we arrived at Exeter in the afternoon, we agreed that 
it had been a day of too much sensation for profitable ob- 
servation. . . . 

" I shall never again feel the sensations which attended 
my first entrance into Exeter Cathedral. The exterior of it, 
with its many buttresses surmounted with pinnacles, and the 
lofty spires from its tower, had in some degree prepared me 
for them. In magnitude and in awful solemnity it greatly 
exceeded any ecclesiastical structure I had ever seen. Its 
dark-gray walls, covered in some parts with effigies in bold 
relief, which had been mutilated by violence, or worn off by 
the elements, so as to present no distinguishable features, 
spoke not only of ages long past, but of races of men who 
had successively lived and died, flourished and decayed, been 
ennobled and forgotten, had ruled and were trodden under 
foot, while the temple itself stood firm on its foundations, 
pointing with its pinnacles to the ever living and unchange- 
able Being above, in whose honour it was erected and still 
employed. Here was the noblest image I had yet beheld of 
change and constancy, of death and immortality, of the va- 
poury life of man and of the imperishable love and fear of 
God. With the emotions which the first view excited, I en- 
tered the church at its western end, and as I looked onward 
and upward and around, and took in the whole scene, I for 

139 



HORACE BINNEY \_Mt. 56 

the first time felt disturbed by the presence of my com- 
panions, and wished to be alone. 

" The painted windows threw a ' dim religious light' upon 
the bishop's throne, and upon the pulpit, the stalls, and the 
altar, all of which brought before me the service of the 
Church, and made me feel that I was a fellow-worshipper in 
all points with those who worshipped there. It was a delight- 
ful feeling of communion with a people of whom as yet I 
knew none. ... I continued to feel as a stranger and an 
alien in Italy to the last day of the seven months I passed 
there. I felt at home the very first hour that I entered an 
English church, and not truly till then. It was not so much 
the structure which produced this effect, as the worship cele- 
brated in it, all the principles and ceremonies of which I 
knew and approved; but the structure, so worthy of the 
worship offered up in it, contributed to exalt the feeling to 
the very highest degree." 

From Exeter they went to London by the mail-coach, 
which presented many interesting novelties to the American 
eye. 

" An English mail-coach is a ' bit of Heaven dropt down 
upon earth,' as much as the Bay of Naples, and rather more. 
Everything in it and about it moves at once, — horses, coach, 
and passengers. There was not a jerk or twist that would 
have spilt the wine from a glass in the one hundred and 
seventy miles from Exeter to Hyde Park Corner. Always 
in brisk motion, sometimes at full speed, you hear nothing 
but the sound of a closely geared engine, something like one 
of the deep pipes of an organ, with the least possible of the 
tremulant in it. It is, moreover, the gayest thing imaginable 
to the eye. The coachman and guard (I speak of the Royal 
Mail) in their scarlet coats and gold buttons, the coach gen- 
erally, perhaps always, red, with the royal arms, the horses 

140 



1836] LONDON 

blooded and perfectly groomed and matched in their paces, 
and the harness flashing from its metal tips and mounting, 
make it in seeming a holiday equipage, while in truth it is 
every day and all days in the year the same, to be found in 
the same spot at the same hour every day, and going at the 
same rate. A whip lash, cutting through the air like a scimi- 
tar, was the only word I heard from the coachman to his 
horses, and that very rarely, and it was always the precursor 
of a deeper tone from the wheels." 

The stay in England in this summer of 1836, and after 
the return from the continent the following spring, covered 
in all about three months, including seven weeks in London; 
and, fortunately, Mr. Binney's journal records some of the 
impressions produced by the sights of that city, as well as his 
meeting with men whose lives have now become a part of the 
history of the empire. 

" The monuments [in Westminster Abbey] in general, 
though they recall the names of some immortal men, are so 
irregularly thrown about as to mar the effect of this temple. 
From this cause perhaps, and from the tendency of the mind 
to dwell upon the deeds and characters of men, especially 
upon the pageantry of kings, queens, and coronations, to 
which the Abbey is devoted, I confess to the smallest degree 
of solemnity in it that cathedral church ever impressed me 
with. The full effect of cathedral architecture depends upon 
its devotion, and its exclusive devotion, to the worship of God. 
If the flaunting or gaudy banners of Knights of the Bath 
are hung up in it, if flags won in bloody victory are displayed 
there, if gorgeous monuments of statesmen, warriors, and 
poets proclaim there the praise of the sculptor, or the emptier 
praise of men who for the most part did works which God 
will disown, — I have found, wherever these things have 
struck me, that the emotion first excited in the Cathedral of 

141 



HORACE BINNEY [JEt. 56 

Exeter did not enter my heart. Westminster Abbey and 
St. Paul's were not therefore with me the temples of the 
living God, but were the works of man in commemoration 
of man. They are both, especially the latter, immense 
structures, and volumes have been written about them and 
what they contain, but I feel the same emotion in reading 
of them as I did in seeing them. How different from twenty 
other churches I could name! Henry VI I. 's chapel, where 
the banners of the Knights of the Bath are suspended, — gor- 
geous and admirable no doubt, — would have looked as well 
to me in a picture. Can I say this of Exeter, Worcester, 
Gloucester, York, Canterbury?" 

The chief impression produced by a visit to the Tower 
was the triumph of law over force. 

" When the eye was not busy looking, the heart was 
thrilling with thoughts springing up from everything 
around, — of imprisonment, of misery and death, of murders 
according to law, and without law, and against law, that 
seemed to be written on every stone within these ' towers of 
Julius, London's lasting shame.' I was not sorry to get away, 
nor yet sorry to have been within and to reflect that, at this 
time of day, the lawless imprisonment of a British subject 
within those towers for a single day, and still more the law- 
less murder of any one, however obscure, by the arm of 
power, might shake them from their turrets to their founda- 
tions, that not one stone would be left on another. So much 
have the men around it changed, while the Tower is still 
unchanged. Lovelace's poetical philosophy — ' Stone walls 
do not a prison make, nor iron bars a cage' — has received its 
verification at this day as also a political truth. No man is 
a prisoner in England unless the law is his gaoler." 

When Mr. Binney visited England, but twenty-one years 
had passed since Waterloo, and the interest in the anniver- 

143 



1836] LONDON 

sary celebration was heightened by the participation of many 
of those who had taken part in the battle itself. 

" Saturday, June 18. The anniversary of the Battle of 
Waterloo, and a military exhibition in Hyde Park. It was 
a glorious day, and the first, almost the only one, that re- 
minded me of the fine summer weather of my own country. 
... A fresh breeze dried up most of the watery clouds and 
drove the rest rapidly through the skies, giving that succes- 
sion of light and shadow so favourable to the picturesque. 
There were about five thousand men under arms in the park, 
and they had been in preparation and training for the fete 
for several weeks. The spectacle was for its scale magnificent, 
and its scale was qjuite large enough for such an eye as mine. 
A card was sent to me to admit my carriage within the ring ; 
but we were much better placed than in a carriage, — namely, 
in the upper story of a lofty house, immediately opposite to 
the royal carriages, and of course within a short distance of 
all the distinguished persons who surrounded the King. The 
Duke (there would seem to be but one duke in England) and 
the Marquis of Anglesea were most observed by us. The 
marching, firing of the small-arms, charging of the cavalry, 
indeed all the evolutions, seemed perfect. Two thousand legs 
seemed to be governed by one will. The feet in all parts of 
the park rose and came down as one foot. What gave special 
animation to the scene, however, was the finish of perform- 
ance in the Horse Artillery. It was served with so much 
rapidity, and moved in all parts with so much precision, that 
had horses, guns, and men been manoeuvred by machinery, it 
could not have been moved with more certainty, and it was as 
quick as an electric battery. A sham fight, which was enacted 
in the park, gave scope for all movements that it was thought 
proper to make. The vivid green of the park, the bright 
scarlet of the Guards, the flashing of their arms, the dazzling 

143 



HORACE BINNEY [JEt. 56-57 

white of their drillings, the charge of their light cavalry, the 
roar and smoke of the artillery, the animating breeze, and 
the bright sun, just tempered by the quick-passing clouds, 
as he fell upon the gorgeous scene of actors and spectators 
below, made it the most beautiful pageant I had ever be- 
held. It increased our satisfaction to think that it was a 
commemoration of by-gone sacrifices, and not a preparation 
for new." 

As may well be supposed, Mr. Binney visited the courts 
and Parliament with peculiar interest. The latter was then 
sitting in temporary quarters, after the fire in St. Stephen's 
Chapel, and the arrangement of the apartments he heartily 
approved. 

" They are of ample size for business, and for all the 
necessary accommodations for visitors. The desks and arm- 
chairs of our Congress are an abomination. Covered with 
newspapers and letters to be answered, and the desk drawers 
stuffed with paper, quills, biscuit, and tobacco, and arm- 
chairs behind them with stuffed bottoms, — who can expect 
despatch of business, or attention to what is going on, in a 
body so accommodated? A book or a newspaper or the 
writing of a letter is an easier refuge from a long speech 
than to cough it down. If members must listen, they will 
not endure a bore very patiently; and while they sit close 
together on hard benches without backs, they require to be 
interested by the speaker, as their own position is by no means 
interesting. As to the public, if the stenographers are there, 
and room for a dozen besides, it is abundant room. I am 
therefore for confining representative bodies within the small- 
est compass not producing positive bodily discomfort, and 
this I understand is the design of the new Parliament House. 
I am for compelling the members to cough, scrape, or groan 
down the whole army of bores who speak for Buncombe, and 

144 



1836-37] LONDON 

they never will do this if they have books or letters to read 
or arm-chairs to sleep in. 

" In the afternoon I went to the House of Commons, 
being admitted by the Speaker, and having a seat on the 
tier of benches, which, on each side of the door of entrance, 
rise from the level of the lowest bench to a height of perhaps 
eight or ten feet. I heard Lord John Russell, 4 Sir Robert 
Peel, Sir James Graham, Warburton, Wood, O'Connell, 
Shiel, Lord Stanley, Talfourd, Sir John Campbell, 5 or most 
of them, but the topics were of no moment, nor the debates 
of any interest. The members transacted business in com- 
mittee with great effect and despatch. There was a good con- 
versational style of remark, a few minutes by each speaker, 
pertinent to the matter in hand, and without any pretension : 
good manners, good sense, order, pertinence, facility, and 
promptness. I made an involuntary contrast between this 
and what I had always witnessed in Committee of the Whole 
at Washington. I do not mean to criticize the speakers, but 
I heard no debating at any time in either House that was 
better than I had often heard at home; in general it was 
not as good. I must, however, express a decided preference 
for the manner in which business was disposed of in the 
House of Commons." 

Of other visits he wrote : 

" April 19, 1837. I went down to the House this even- 
ing after dinner to hear a debate upon a motion by Sir Henry 
Hardinge in regard to the employment of British forces in 
Spain. When I entered the lobby, by permission of the 
Speaker, Lord Palmerston 6 was on his legs, and I listened to 
him for two hours, and left him as I found him, during which 
time I think he had used his legs more than his understand- 



* Home Secretary. 5 Attorney-General. ' Foreign Secretary. 

10 145 



HORACE BINNEY [JEt. 56-57 

ing. He is an awkward, unfluent speaker, wanting small 
words especially, and never using select ones. On at least 
fifty occasions his sentences were finished in a way that he 
probably did not intend. I never knew a man who had so 
little of the Virginia faculty of closing a period smoothly 
and roundly without regard to its meaning. There was good 
sense in much that Lord Palmerston said, but it was very 
plain, every-day sense, delivered in a very plain, every-day 
dress, by no means so good as he covers his body withal. I 
understood at the same time that this was one of his best 
efforts. He was at times vehemently cheered by his friends, 
sometimes by the opposite side by way of taunt, and then 
there was a regular set-to, each side endeavouring to out-go 
the other. It was like nothing I could conceive of but a 
grove of monkies in Africa at a town meeting. The ' Hear, 
hear, hear' was sometimes like the neighing of a horse, some- 
times like the gibber of an ape. Everything like dignity was 
put to flight by it, and I suppose that it is never used in this 
uproarious form as an accompaniment to a speech of any 
dignity, which Lord Palmerston's was not." 

" April 28, 1837. In the evening I went with our min- 
ister to the House of Lords. Some Irish remonstrance was 
up, in regard to Lord Normanby's administration, the pardon 
of culprits among the disaffected, I believe. Lords Roden, 
Clanricarde, Donoughmore, Glengall, Lansdowne, 7 and 
Wellington were the speakers. The Marquis of Lansdowne 
spoke quite well, and evidently got the advantage of Roden, 
who had made his attack without a due preparation of facts ; 
and I was delighted at the manner in which the Duke, finding 
his friends could not meet the enemy in front, gave the min- 
istry a smart charge in flank, and got a little advantage there 



Lord President of the Council. 
146 



1836-37] LONDON 

to set off against the loss in the main action. No final ques- 
tion was taken, but all was conducted with great dignity. 
Lords Brougham, Holland, Cottenham, 8 Abinger, Mel- 
bourne, 9 Glenelg 10 were there, in a full house; but not a 
word did I hear from any of them but a ' Hear, hear' from 
Lord Holland, in a voice of such breadth, depth, and spirit 
as went to my heart." 

Of his visits to the courts, Mr. Binney wrote: 
" June 16, 1836. The judges were at work, but not in 
banc. Coleridge was sitting for the King's Bench, Parke for 
the Common Pleas, Lord Abinger (Scarlett) for the Ex- 
chequer. Witnesses were under examination, and the judge 
took brief notes, but not the counsel, and the pause between 
the answer and another question was the shortest possible. 
The wigs are a capital supplement to a tell-tale face, the 
worst thing with a bad cause that a barrister can have. They 
bring all the faces to one expression, and that the blankest 
possible. Sir John Campbell, the Attorney-General, and 
Sergeant Talfourd (the author of Ion) looked both alike. 
I afterwards saw them in the House, and, in the absence of 
their gowns and wigs, pacing Westminster Hall; they were 
meconnaissables. Two men more unlike, out of their wigs, 
never lived. . . . 

" April 18, 1837. Visited the Court of King's Bench. 
Denman, Littledale, Patteson, and Coleridge were all in 
court. The countenance of the chief justice is manly and 
good. It is a face to bespeak confidence in integrity, rather 
than in acuteness or learning. Judge Littledale is obviously 
an old man who has outlived his vigour ; but I took pleasure 



8 Lord Chancellor. 

9 First Lord of the Treasury, and Prime Minister. 

10 Colonial Secretary. 

147 



HORACE BINNEY [JEt. 56-57 

in tracing out his resemblance, which I instantly perceived, to 
my old master Mr. Ingersoll. Patteson has a fine eye, in- 
dicative of genius, not of patient and long-enduring labour. 
Coleridge's physiognomy could not be improved. There was 
thought and refinement in all its lines. The wigs and curls 
and bluish-purple gowns with changeable reddish cuffs were 
an important part of the scene. It was motion day, and the 
counsel were called upon in order. The oldest soon got 
stumped, and was talked down. His motion for a new trial 
did not last three minutes, and the court saved all trouble to 
his opponent. The reporters were sitting under the court, 
taking their notes, and the students-at-law were employed on 
each side of the reporters in the same way. There was great 
order and sufficient despatch, but there was little ceremonious- 
ness between court and bar, and not the least air of either 
condescension or deference. Upon the whole the judges and 
bar were more nearly on a level than they are in the Supreme 
Court of the United States, not to say that there was any im- 
proper familiarity either way. 

" In the Exchequer, which I also visited, Lord Abinger 
was sitting as chief baron, with Sir James Parke and Bol- 
land. Lord Abinger's face was not as fiery as it struck me 
to be last summer. When I saw him I knew him to be Scar- 
lett at first sight, varying to crimson. Sir James Parke has 
a dark, Websterian face, and passes for having the same kind 
of head. Bolland's face is long and not intellectual. 

" The Vice-Chancellor Shad well, who was holding his 
court, caught my attention more by a remark he made to 
counsel than by his face or person. Some one, I did not know 
who, was endeavouring to repel a charge of harshness made 
against his client by the opposite counsel, as if he feared its 
influence on the vice-chancellor's mind. The vice-chancellor, 
in a clear but rather sharp and thin voice, said, ' It is not the 

148 



1836-37] LONDON 

question, and I care nothing about it. Go to something 
else.' 

' Tindal and three others were in the Common Pleas. 
One judge was absent from both this and the King's Bench, 
probably at sittings or nisi prius. . . . 

" April 28, 1837. The American Minister did me the 
honour to drive me down to Westminster Hall, to introduce 
me to the judges, at a little after nine. We had delayed so 
much that they were just going into court when we entered 
their chamber, and after an introduction and a few words 
Lord Denman led the way and asked us to follow the judges 
into the court-room, where he ordered us a seat near the re- 
porters. The Attorney-General (Campbell) asked us down 
to his form, which was in front, nearest the court, and there 
we sat for an hour. Whiteman and Archbold were argu- 
ing, and Cresswell, who was sitting among the barristers, 
said something civil of the American courts, with which 
he said they were well acquainted by their reporters in the 
library of the bar. It was motion day, as when I was last 
there." 

Of the lawyers' church Mr. Binney wrote: 
" Sunday, April 23, 1837. It was with great pleasure 
that I took my girls to the Temple Church this morning, to 
hear the fine organ, to see the noble old structure, and to 
hear a sermon from Mr. Benson, the present master, whom 
I have more than once heard spoken of as one of the best 
preachers in England. The church is a structure parts of 
which looked older than other parts, though none was new. 
In a sort of vestibule the monuments of the Knights Templar 
give you antiquity of more than five hundred years, as the 
order has been so long abolished. The bronze figure of the 
knight lies flat in some instances on the top of his grave, 
without other monument. Such as had been to Palestine as 

149 



HORACE BINNEY [JEt. 56-57 

Crusaders lie with one leg crossed over the other. The ser- 
mon was well written and well delivered, that is to say, with 
unction. The Master seemed to be in feeble health. The 
greater part of the congregation consisted of men, who I 
suppose were the benchers, and the same description of men 
for whom Sherlock wrote his admirable sermons when he 
was master, the very best sermons for lawyers that I think 
were ever written. ... It was the highest gratification 
to be in the church, and in the centre of the audience 
that I had so often figured to myself while reading these 
sermons." 

Mr. Binney had taken a hundred and thirty letters of 
introduction with him, chiefly to Englishmen, but as he did 
not present a third of them, probably the greater number had 
been volunteered by his friends. His unwillingness to leave 
his daughter and niece to themselves restricted his own move- 
ments somewhat, and he was, moreover, never keen about 
making acquaintances, and the last man in the world to run 
after celebrities. He was also somewhat influenced by the 
fact that the general feeling of Englishmen towards Ameri- 
cans was then far from cordial, for he wrote : 

" I regretted exceedingly that I had to break away from 
Edinburgh without seeing any of its great men, to several 
of whom, Jeffrey, Hope, and others, I had letters; but 
during all my tour I felt exceedingly shy of presenting my 
letters to English and Scotch gentlemen, who are themselves 
very shy of my countrymen, placing all of us in a category 
which I might not have had time enough, in a single inter- 
view, to shew I did not belong to. ... I had taken Lock- 
hart's Life of Sir Walter with me, as far as it had appeared, 
and his letters are not of a kind to induce an American gentle- 
man to build much on casual invitations, ... or even invita- 
tions of more emphasis. There is very little kindly feeling 

150 



1836-37] LONDON 

towards my countrymen among the nobility or those who 
associate with them, and if, perchance, Sir Walter names an 
American in kind terms, as he does two or three, you are 
given to understand that he regards them as exceptions. This 
is not exactly the temper which a man of any delicacy is 
inclined to trespass upon." 

He did, however, see a certain amount of London society, 
of which the journal gives a few glimpses. 

" At Sir William Alexander's I met Mr. Kindersley, one 
of the foremost men at the Chancery bar, a man of fine breed- 
ing, with a most attractive countenance and an easy stream 
of conversation, which I could strike into and come out of at 
any time without raising a spray like the sea against the 
Eddystone, as must happen when you encounter an uproari- 
ous and engrossing talker. The latter happened to me but 
once in London: the general manner was that of Mr. Kin- 
dersley. I saw at the same house a letter from Sir William 
Grant to Chief Baron Alexander, shewing that he had been 
offered the seals and had declined them, a fact not generally 
known. At Lord Ashburton's I met Mr. Pemberton, another 
of the Chancery bar, perhaps at its head, equally quiet and 
well-bred, but not so attractive as Mr. Kindersley. D 'Israeli, 
the author, was there, a great dandy ; Lord Lowther, a man 
apparently of strong mind; and a Mr. Banks (' Conversa- 
tion Banks,' he was called) , who quite overlaid D 'Israeli with 
a never-ending, still beginning succession of histories, bon- 
mots, the life and adventures of Lady Cook, etc., which pre- 
vents my remembering a single word that either of them said, 
except that when Banks was about to speak of a very old 
lady, D'Israeli had the good luck to deliver himself thus: 
* Oh, yes, I recollect, — 

She lived to the age of eighty-three 
And died by a fall from a cherry-tree.* 

151 



HORACE BINNEY [jEt. 56 

" Banks, indeed, overlaid us all, but he smothered 
D'Israeli for spite, the rest of us only because he would 
have split himself if he had not talked. This was the case 
of violent talk to which I alluded. It was very amusing, 
sometimes very droll; but in the presence of strangers, for 
whom the dinner was made, it was very impudent. At Lord 
Lansdowne's I met Lord Glenelg, the Secretary for the 
Colonies, a very dull man, I think, and Sir John Franklin, 
the traveller, communicative and agreeable. 

" [On June 26, 1836] I dined by invitation with his 
Grace the Duke of Wellington, to meet the Prince of 
Orange. It was a large dinner party, of perhaps thirty, 
and I suppose Sunday was selected as it was the anniversary 
of the accession of the King to the throne. The hour of 
dinner was seven in the cards of invitation, and I was in the 
picture gallery of Apsley House, where the Duke received 
his guests, a few minutes after that hour ; but the only person 
before me was Lord Rosslyn, an intimate personal friend of 
the Duke. The rest came in at from a quarter to three- 
quarters after seven, and the company did not enter the 
dining-room until after eight. Punctuality therefore, though 
one of the Duke's characteristics, was not the rule among all 
his guests. 

" The Prince of Orange, Lord Rosslyn, Lord Aberdeen, 
the Duke and Duchess of Buccleugh, the Earl and Countess 
of Wilton, Lord Burghersh (son of the Earl of Westmore- 
land, and married to a niece of the Duke) , Lord Fitzroy Som- 
erset, Lord Hill, Prince and Princess Galitzin, M. and Mme. 
Dedel (minister of the Netherlands), Sir Charles Bagot, 
were among the guests. The Duke presented me to most of 
the gentlemen, in which name I can give no just cause of 
offence by comprehending princes, noblemen, and com- 
moners. It is the highest title of any of them. The Marquis 

152 



1836] LONDON 

of Down, the Duke's oldest son, was present, quite a young 
man, and not likely to make the world forget his father, and 
one or two young men of the same age, one of whom sat next 
me at dinner and amused me by his flippancy, — telling me 
that the Princess Galitzin's right cheek was rouged so highly 
because the left had been accidentally burnt to that colour; 
that Lord Hill, who was on his left, was then asking the 
lady who sat on his left, who he was (the young flip) who 
sat on his right, and he should like to hear her account, 
as she was his wife; and so on around the table as long as 
I would listen to him. The person on my right was Lord 
Rosslyn, under whose care the Duke placed me, and by him 
I was instructed in all the particulars of the company that 
a stranger might not be presumed to know, but with perfect 
breeding. . . . 

" The dining-room was hung round with portraits at full 
length of the Emperor Alexander, the King of Prussia, the 
King of the Netherlands, Louis XVIII. , and Charles X., all 
by Sir Thomas Lawrence ; and the table was a sort of history 
of some of the Duke's military achievements. A silver 
plateau of perhaps twenty feet long, richly wrought, was the 
gift of Portugal. The silver and gold service on which we 
dined was, I think, the gift of the city of London. The 
china on which the dessert was served was the gift of the 
King of Prussia, each plate representing some battle or pub- 
lic event. The furniture of the table, and it was very splen- 
did, by its forms or the devices upon it, reminded one of the 
Duke's military services, and this it may be thought was an 
objection to the display of it in the Duke's house ; but it should 
be recollected that this was in some sort a public dinner to a 
foreign prince, and that the plate, china, and table-service 
were not a contribution by the Duke to his own glorification, 
but the gift of grateful princes and people. Indeed, the 

153 



HORACE BINNEY [^t. 56 

Duke's personal or private character is so entirely absorbed in 
his public condition and relations that the reserve and modesty 
of a private man would be regarded as affectation. 

" In his address and demeanour to myself he was as un- 
assuming and well-bred a person as I ever met. He looked 
thin and rather careworn, or perhaps I mistook for this what 
were merely the traces of declining health. His stature is of 
the medium height, and the features of his face prominent, 
giving the expression of firmness and strength, rather than 
of refinement. I was particularly struck by his eyes, to which 
most persons resort in the first instance for an introduction of 
character, and which surprised me by a total absence of bril- 
liancy, and, indeed, of almost all distinct expression. Their 
colour seemed to be like lead, a dull blue. I looked again 
and again to see if there would come over them any change, 
but never found any. They were neither forbidding nor 
inviting. They were rather cold, far from being unintelli- 
gent, and as far from being penetrating. They were by no 
means common eyes, and yet none of the uncommon qualities 
which the eyes sometimes shew were indicated by them. 
From often looking, however, the impression was at length 
made upon me that what is more frequently shewn by 
the bones of the head and face, and what both the head and 
features of the Duke expressed quite strongly, was shewn 
most strongly by these dullish-blue eyes, — an imperturbable 
soul. There were no sharp or quick glances from them, noth- 
ing in them which created uneasiness in the observer, or made 
him unwilling to meet their regard with his own, but there 
was an equableness in their movement, the expression of a 
composed and self-dependent mind, which you would say 
neither good nor adverse fortune, however sudden or extreme, 
could disturb. I do not infer this from his character, for I 
do not know it to be his character, but from the eyes them- 

154 



1836] LONDON 

selves, which I at first thought very common, and after much 
observation I came to think the most uncommon I had ever 
seen. 

" The Duke was dressed as a private gentleman, that is 
to say, in a black coat and knee breeches of the same colour, 
but he wore the garter at his knee and the riband over his 
shoulder, as did the Duke of Buccleugh. The Prince of 
Orange I think had none of his orders on. He had a hearty 
and frank manner, and a good deal the air of a roue. His 
mouth was of the largest and coarsest, and no very good teeth 
within. He spoke English with freedom enough, but with 
a strong accent, and such questions as he put to me, and the 
remarks he made, indicated nothing. He was a gallant officer 
at Waterloo, and was wounded on the present site of the 
Mont du Lion. Two of his younger sons were at this time 
in England, soliciting, it was said, the regards of the Princess 
Victoria. Another of them had been in this country, and had 
been feted by the citizens of Albany. The Prince said that 
they had been kind to one of his ' poys,' but seemed to take 
such civilities as a matter of course, and not to be the occasion 
of any particular thanksgiving. I was not struck by anything 
as much as by the heartiness of his manner, in which, however, 
there was no bonhommie whatever. 

" Lord Aberdeen, rather a shy and awkward man, I 
should say, said a good deal to me of General Jackson's 
affair with France about the Indemnity Treaty, and praised 
him much for the spirit with which he managed it. I could 
only bow in token of my hearing him, and in a sort of re- 
sponse to the motive of his remarks. I happened to differ on 
the point from his lordship. He also praised Mr. Van Buren 
for both his general manners in society and his cleverness in 
diplomacy. To this I bowed with the like meaning. It was 
rather singular to hear these praises from the lips of the high- 

155 



HORACE BINNEY [JEt. 56-57 

est Tory in England, but perhaps there was a congeniality. 11 
I had a letter to his lordship from Mr. McLane, our former 
minister, but I did not deliver it. I spoke myself with some 
praise of Mr. McLane, and Lord Aberdeen assented; but 
he seemed to contemplate with most favour the two person- 
ages first mentioned. 

" Lord Hill, with whom I also conversed, seemed to me 
one of the easiest and sleepiest of men, unaffected and well- 
bred, but not quite awake. On the field of battle I suppose 
he was lively enough. It is said that the duke could always 
rely on all the orders he gave to Lord Hill. 

" The Duke of Buccleugh was a tall, thin stripling in 
person, with the air of a man of fashion. From the Duke 
of Wellington's calling to him out of a group to introduce 
me, he inferred, I suppose, that he was to be civil to me, and 
accordingly invited me to a party that the duchess was to give 
the next day. He said he should not be there, but urged me 
to come, and said the duchess would be glad to see me. He 
also invited me to Dalkeith, where he would be in the autumn. 
The duchess was a short sort of dairy-woman in appearance, 
young like himself, and as hearty a laugher at table as I ever 



11 A letter written by Mr. Binney the following winter shows that Lord 
Aberdeen was not alone in his opinion. 

" It is not a little edifying to hear the opinion entertained by foreigners of 
things at home. The highest praise I heard in England of Jackson and Van 
Buren was from the Tories of the strongest cast. Lord Aberdeen spoke in the 
strongest praise of both, and especially of Jackson's affair with France, which 
had very much raised us. On the Continent Jackson's name, with politicians of 
every cast, is in better odour than any President's since Washington. He is 
praised as a fine writer, a man of indomitable will, a sworn enemy to corruption, 
and a true patriot. Van Buren will succeed to his praises, unless his ignorance of 
arms shall hurt him. I rather think, however, that, coming as he does by the fiat 
of his predecessor, he will succeed to his reputation in all points. The opposition 
must be content to pass with Europeans generally as the same sort of faction 
which exists in all countries and endeavours to disturb the regular course of 
government." 

156 



1836-37] LONDON 

met. They told me in Scotland that she did not laugh, but 
cried herself into the Duke's heart, who, on taking leave of 
her for Scotland the day after he had seen much of her at 
a dance, could not resist the evidence of her tears that he had 
made an impression upon her, and gave up his journey to 
attend to the more urgent business of drying them up. 

" It was about half -after eight that a note was delivered 
to the Duke, and he read it to his guests. It was from M. 
Sebastiani, the French minister, announcing the attempt 
upon the life of the King by Alibeau the previous day, and 
its fortunate miscarriage. It had left Paris about one o'clock 
the same morning, telegraphed, 12 I suppose, to Boulogne. 
The Duke's pronunciation I observed to be quite English. . . . 

"April 20, 1837. Dined at Sir William Alexander's 
with Sir John Nicholl, fresh, though much advanced, being 
upward of eighty. Sir John informed me that Mr. King, our 
minister to England, and himself first urged Dr. Robinson 
to report the Admiralty decisions of Sir William Scott. He 
made inquiries of me concerning Rufus King and two or 
three other Americans whom he had known in London, and 
who had been dead perhaps twenty years. In this respect he 
was like many other eminent men I saw, who took no sort 
of interest in the United States or their men or measures, 
unless some particular personal interest had awakened their 
attention. He asked about General Ira Allen also, who had 
been dead perhaps forty, and amused himself by telling me 
of the general's admiralty suit, in which Sir John was his 
counsel. He had been captured with arms, going somewhere 
upon a Yankee errand to make the most of a bargain, without 
much regard to the law of contraband. Sir James Marriott 
had determined to condemn, and Allen, who meant to shew 



11 Semaphore telegraph. 
157 



HORACE BINNEY [JEt. 56-57 

he was not frightened, went into court in his Continental 
regimentals. Sir John told him he might make what fence 
he pleased, Sir James would leap over it all ; and Allen said, 
1 Well, all I ask is that you will make it as high as you can.' 
He seemed to retain a vivid recollection and even relish of 
Allen's strongly marked character, and of his Yankee Dorie 
especially, of which Sir John gave me specimens. . . . 

" It was at [a musical] soiree [in 1836] that I first saw 
Mr. Samuel Rogers, whom I afterwards had the pleasure to 
know. I saw a quiet -looking old gentleman, in a black frock 
coat and white cravat, with a perfectly white and nearly hair- 
less head, sitting in a sort of dreamy mood on one of the 
benches, neither talking, nor looking, nor apparently listen- 
ing, but, as far as he was engaged with anything, seeming 
to be occupied with something that was going on within 
himself. He was no doubt shutting out all the sights around 
him, and deadening his ears to every sound except that of the 
music, that he might the better take in its exquisite strains. 
[Malibran, Grisi, La Blache, Tamburini, Rubini, Thalberg, 
and Costa were the artists.] This was Mr. Samuel Rogers, 
the poetical, the conversational, the amiable, the truly well- 
bred, the refined, the elegant in mind and spirit. I never 
before liked any man so much upon a week's acquaintance, 
and that a very slight one even for a week. . . . 

" May 1, 1837. A pleasant dinner at Dunlop's, with S. 
Rogers and Leslie. Rogers's account of the stuffed footmen 
on the Cardinal's coach, whom the horses of the Cardinal 
following ate up from desperate hunger before they arrived 
at the Vatican, was as good and as English as Hogarth's 
Calais Gate. Even such an Englishman as Rogers (one of 
the best) relishes a joke at the emptiness of foreign preten- 
sions to style and grandeur. I heard him speak of the poet 
Coleridge as gone in intemperance, both of rum and tobacco. 

158 



1836-37] LONDON 

. . . Yet he said he had written beautiful poetry, and was 
capable of writing better still. Leslie spoke of Rubens in 
very high terms, of Murillo in low. He said his Madonnas 
were peasants. . . . 

" June 5, 1837- A very pleasant day, fully employed, 
beginning with a breakfast with Mr. Rogers, whose kind 
manners to my girls and the ease and friendliness of his talk 
were very engaging. I do not wonder that he is so universal 
a favourite. He opened his private study to us, shewed us 
the original contract with Milton for the Paradise Lost, — I 
think £5 was the price of the work, — and gave us a profu- 
sion of anecdotes in his quiet way, of all ways the best. Be- 
hind my chair at breakfast was a carved stand, the work of 
Chantry, which Mr. Rogers had purchased he knew not where 
nor why ; but as Chantry was dining with him the first time, 
he described this stand, and told Mr. Rogers that it was his 
work while he was apprentice to a cabinet-maker. Cooper 
(our Cooper), he said, did not take in London. He was 
huffy and stood upon his own dignity: wouldn't go to the 
Duke of Devonshire's because the Duke had not first called 
upon him. . . . 

" June 3, 1837. I passed a very delightful hour in the 
parlour of the Russian minister, Pozzo di Borgo, at his house 
in Dover Street. I should not record, even here, the remarks 
of a public man on public measures of his own country if 
they were such as he ought not to have expressed; but I 
suppose them to have contained nothing that he had not ex- 
pressed before, and at all events that he might not safely have 
expressed to any one. He was not questioned by me to a 
single point. He did not question me. He probably knew 
from the gentleman who presented me to him that I should 
not repeat what he had said, and he talked freely and com- 
municatively of what he thought would interest me most. 

159 



HORACE BINNEY [Mt. 56-57 

Two full-length portraits in the room, Alexander and Nicho- 
las, did not fail to attract me during my visit, and I said a 
word of praise in regard to the original of the one who had 
run his race. He said they were two very different men. 
Alexander was amiable, he had beaucoup dfamenite. Nicho- 
las was un homme de tete, by which I supposed him to mean 
that he had not much heart. This was the only remark he 
made concerning his present master. Alexander was, more- 
over, a prince whom he had found it safe as well as honour- 
able to serve. He had differed from him in regard to a point 
of policy to such an extent that he was prepared for leaving 
the Emperor's service. The coolness was mutual and lasted 
for some time. Pozzo di Borgo could not surrender his 
opinion, nor would Alexander surrender his. At length the 
Emperor said to him one day, ' The subject on which we 
differ you no longer mention.' ' I cannot hope to change 
your Majesty's opinion.' ' And you do not mean to change 
your own; mais les gens honorables s'eocpliquent' And 
then the Emperor entered upon a conversation in which he 
did full justice to his minister, and finally declared himself 
satisfied with the minister's views, and dismissed him from 
the interview with great cordiality. The point of difference 
regarded Poland. But Pozzo di Borgo, though a friend to 
Poland, said that setting up that government would be a fatal 
example to Russia, and could not be thought of. The chain, 
he had thought, might have been lightened. 

" He was no friend, he said, to unchangeable constitu- 
tions, like ours, for changeable people. The excellence of the 
English Constitution was that as the people changed, the 
constitution was changed with it by the legislative power. 
The rigour of our written Constitution prevented this, and 
exposed us to spasms. 

" The great point in the administration of modern na- 

160 



1836-37] LONDON 

tions was not the balance of power, but the balance of parties. 
The desideratum was so to balance parties that the respon- 
sible party should have strength enough to carry out its own 
measures, without having enough to be above responsibility 
for great faults. 

" He was in Paris during the trois jours, and had con- 
versations with Louis Philippe on the subject. Whether it 
was the opinion of Louis Philippe or of himself I do not 
recollect, — probably they concurred, — that the only way of 
restraining or bridling the democratic principle was by insti- 
tutions, by which I understood the army, the navy, the public 
establishments of every kind, judicial, administrative, etc. 
His opinion, as well as that of every one with whom I spoke, 
was that the King was fully adequate to his position. 

" The point on which he was most explicit was on the per- 
fect and irresistible power of Russia over the fate of Turkey. 
It was in the interest of Russia to sustain Turkey, and not to 
destroy her. The latter was as easily done as willed, and 
England could not possibly prevent it. But she had no 
reason to apprehend it. Turkey was a frontier that was 
useful to Russia. He did all but say that the policy of 
Turkey was the policy of Russia. 

" I do not mean to be understood as having adopted all 
the opinions the minister expressed, but his conversation was 
very agreeable, and, like his master Alexander, ' full of 
amenity.' " 

To a man of Mr. Binney's observing and reflecting mind 
the social characteristics of the English people were very in- 
teresting, especially in their points of contrast with the Amer- 
ican characteristics of that day. Some of his observations 
may therefore properly be recorded here. 

" It was quite natural that those things in London should 
strike me most which are most in contrast with things in my 

11 161 



HORACE BINNEY [Mt. 56-57 

own country; and this contrast is not seen in houses, furni- 
ture, dress, equipage, or externals of any kind, so much as 
in certain habits and opinions. 

" In the United States we have no rank nor titles, no 
privileged class, no class of any kind acknowledged by the 
Constitution. There is no inferiority by law, nor even sub- 
ordination of any portion of the people to any other portion. 
The condition of all under the Constitution is equality. The 
tendency of the people in point of fact is to something more 
than equality, to a general striking or sinking of everything 
to a uniform surface. ... 

" If superiority of conventional rank is asserted by any 
one, it is positively offensive to all whom it effects to under- 
value. The distinction of circles with their separate centres, 
a distinction which necessarily exists in our large cities, is the 
occasion of jealousy and ill-will to all who do not move in that 
which claims to be superior; and the jealousy and ill-will are 
. . . greater where there is some reason for the distinction 
than where there is none, which shews the inveteracy of the 
objection against distinction at all. . . . 

" In England everything admonishes you of an estab- 
lished distinction in ranks, which seems to be regarded as the 
order of nature rather than an institution of man, and it sits 
naturally upon all. I, of course, do not include political re- 
formers or radicals, some of whom are for pulling down 
everything, and may therefore, for aught I know, feel as 
spitefully towards rank and title as they do towards property 
and law. . . . 

" In all grades which I had an opportunity of ob- 
serving, there is not only an acknowledgment of superiority 
in certain classes, but habitual respect for them on that ac- 
count. A nobleman is everywhere received as a person spe- 
cially entitled to deference on account of his rank, without 

162 



1836-37] SOCIETY IN ENGLAND 

regard to his personal merits. No person below the grade 
of nobility questions his title to precedence, or desires to ques- 
tion it, or is made uncomfortable by it. It was sad folly in 
one of our countrymen to think he was slighted by a noble- 
man who went before him into a drawing-room where they 
were visiting together. It would have shocked the prevailing 
sense of propriety had it been otherwise. It was not a ques- 
tion of politeness or civility, but a settled point in the consti- 
tutional law of society. It would have been deemed absurd 
[for the nobleman] to have entered last, and mere gaucherie 
in the American to have gone before him. The gentry receive 
in like manner the special consideration of the tradesmen, and 
the tradesmen of the mechanics, the classes above of the 
classes below. Society in England rises from a broad base 
by regular gradations to a point. No one seems to dislike the 
person above him for that cause, any more than the under 
stone dislikes the upper one in a pyramid. All are striving 
to get above their actual condition, because they esteem what 
is above it, and not to pull down or sneer down what is above 
to their own level. If there is ill-will or contention among 
them on the score of pretension, it is between persons of the 
same class, whose pretensions are not settled by prescription 
nor perhaps by anything like general assent. 

" Rank among the nobility is as well settled in the main 
as if a statute of the realm had established its degrees. In- 
deed, it is a part of the common law ; and the nobility do not 
seem to assert its claims with more vigilance than commoners 
are willing to concede them. I was introduced to the wife 
of a knight, I think, perhaps a baronet, as Lady D., and I 
was told immediately afterwards by my introducer, to exalt 
my conception of her, that she was a lady in her own right. 
She was a daughter of the Earl of Minto; she was of course 
more in reverence than a lady by marriage. ... I was never 

163 



HORACE BINNEY [Mt. 56 

asked to precede a nobleman at any dinner to which I was 
invited, except once, and then I think by mere accident. 
Where commoners alone were present, I was treated as 
strangers are always treated among equals. This is not a 
matter of ceremony so much as it is of habitual feeling, a 
part of an Englishman's nature. I noticed it everywhere, 
and I may say it never annoyed me." 

The journal contains many observations upon institu- 
tions and customs, some of them wholly unknown in America 
at that time, but which have since become thoroughly estab- 
lished here, with but little modification. The clubs, the police, 
the " two-penny post," the well-kept, macadamized streets, 
the attractive squares, the markets, the methods of adver- 
tising, all interested Mr. Binney, not merely as novelties, 
but as features of English life which American life, as it 
developed, was certain to resemble more or less. The ad- 
vantage of a well-disciplined police, a civilian body, not a 
gendarmerie, impressed particularly his order-loving and 
law-revering mind. 

" Our own cities must have this force in time, or there 
will be no living in them. A military police is out of the 
question. Our people will not, any more than the English, 
bear the appearance of arms. The secret of Sir Robert Peel's 
metropolitan force is in its citizens' dress, with just distinc- 
tion enough to identify the individual and his office, constant 
movement on duty, quiet in the performance of it, and such 
discipline as to produce union and concert in the masses when 
they are brought to act against mobs." 



164 



1836] FRANCE 



VIII 

EUROPEAN TOUR (Continued) 

1836-1837 

ENTERING France at the beginning of July, 1836, 
Mr. Binney was for the first time brought face to 
face with the militarism which, then as now, domi- 
nated the Continent, and it made a strong impression on his 
mind. He wrote : 

" There was one feature in Paris — I might say, in 
France — that was in most disadvantageous contrast with 
London and England. The day of Napoleon had passed, 
and a charter and a representative legislature had been sub- 
stituted for the personal will of the Emperor, and also of 
the Bourbons; yet the metropolis and the country at large 
were obviously under military subjection. I do not mean 
that the government of the city or of the country was in 
the ordinary sense military, but everywhere military means 
seemed to constitute the principal reliance of the government 
for the execution of the laws. I have remarked that a mili- 
tary guard was always detailed for the theatres which I 
visited. I must add that there was not a day, nor perhaps 
an hour of any day, that large bodies of either the regular 
army or the National Guard were not marching by the doors 
of the hotel. They were regularly reviewed, several times a 
week, in the Place du Carrousel, immediately adjacent to the 
Palace of the Tuileries, and on Monday morning of each 
week the Place Vendome was the scene of such cases of mili- 
tary degradation as had occurred in the past week, to be 
publicly administered. The large square was on these occa- 

165 



HORACE BINNEY [Mt. 56 

sions densely crowded with soldiers, and in the immediate 
presence of the column, and of the hero whose awkward 
cocked-hat crowns it, the soldier who had disgraced his pro- 
fession was stripped of his uniform or received the other in- 
flictions which his sentence required. Vast numbers of the 
Parisians attended this sometimes dramatic scene, and prob- 
ably felt that the martial law was as much for them as for 
the soldiers. I do not know that I could at any time have 
looked a hundred yards ahead in Paris without seeing several, 
and often many, armed and uniformed men. Often in the 
country, when all within the reach of my eye was with one 
exception peaceful in the highest degree, the gens d'armes on 
horseback, armed to the teeth, seemed to shew that the gen- 
eral rule was not only proved by the exception, but depended 
upon it. . . . These ever-present soldiers did not impair the 
sense of my security, for I believed that their duty was to 
enforce just and equal laws, as far as the condition of things 
permitted such laws; but they made me feel unequal to my 
own defence, an uncomfortable and belittling sensation, 
which no one feels in this country, and which I confess I 
never felt in any part of England." 

A letter to Judge White, written after he had seen more 
of the Continent, refers to the same condition everywhere 
except in Switzerland, and says, " What the people say of it, 
it did not become me to ask. What they thought of it, I did 
not fail to conjecture. In their place I think I should say it 
was an honest power, in saying plainly what it meant to have, 
and if there was room anywhere else in the world, I should 
try to get away from it." 

Mr. Binney was naturally interested in French legal pro- 
cedure, but found little to admire in it. 

" I expressed to the Duke of Bassano, whom I met at 
the table of a friend, my desire to witness a jury trial in Paris, 

166 



1836] PARIS 

and he obtained from the Advocate-General, M. Plughem, 
the knowledge that a capital case was then on trial before the 
Cour d Assises, in which Berryer was counsel for the defend- 
ant, and an invitation to me to attend. I accordingly went 
to the Palais de Justice and had a seat given me on the same 
platform with the judges, a customary civility to strangers. 

" The defendant's name was Dehors, and he was accused, 
indicted, we should say, of arson. He was a proprietor, or 
farmer, and the burning of his neighbour's barn was attrib- 
uted to malice, personal or political. Something in the case, 
its gravity as a crime perhaps, more probably something in 
the public excitement, had enlisted Berryer, who, in the Duke 
of Bassano's note to me, was styled ' premier orateur de 
France.' He was the only counsel retained for the de- 
fendant. 

" The president of the court, with two assistants, one on 
each side of him, and the Advocate-General, occupied the 
bench. The prisoner was in a long box or enclosed seat in 
front of the bench, to the left, a little elevated above the seat 
occupied by his counsel. The witnesses were in front of what 
we should call the bar-table, and on the right, in a box corre- 
sponding to that of the prisoner, were the jury. The fine 
head of Berryer, and his keen, full eye, struck me as soon as 
I had taken my place, and I soon became acquainted with his 
commanding voice and person. 

" I was, of course, most struck, and perhaps exclusively, 
with the points of difference between this jury trial and those 
I had been accustomed to. The president himself swore the 
witnesses, and alone examined them, or, rather, put the ques- 
tions to them. The oath had no reference to a belief in God 
or in a future state. It was in these words: ' Vous jurez, 
sans haine et sans crainte, de dire la verite, toute la verite et 
rien que la verite.' The words ' sans haine et sans crainte' 

167 



HORACE BINNEY [JEt. 56 

might as well have been omitted. They do not comprehend, 
or rather exclude, a more frequent cause of bias than either 
hatred or fear, namely favour or affection, or the hope of 
gain or reward. The omission of the common reference in 
English and American oaths may possibly be explained by 
the want of sufficient religion in the people generally to make 
it of any influence. 

" The practice of putting the questions by the judge is 
the worst possible to obtain the truth from a witness, unless 
two cases are supposed, — that the witness is honest, and that 
the judge is unbiassed. Neither of them is so general as to 
make them the proper foundation of a general rule. In 
cases which affect the appointing power, as political cases 
nearly always do, it is a terrible weight in the scale of oppres- 
sion to have the facts brought before the jury in the colours 
which a corrupt and adroit judge may always give to them 
by the language of his questions. Moreover, an impartial 
mind is not the best to ascertain the facts, though it is de- 
cidedly the best to weigh them. Two or more opposing coun- 
sel, professionally partial on each side, and pulling each his 
own way, most frequently strike the line of the facts. 
Though their contrary forces are respectively tending to a 
false conclusion, the impartial judge is generally able to see 
what is the true resolution of them. If a judge who ex- 
amines the witnesses is partial, his bias will find its way into 
all the evidence ; and if he is impartial, the danger is that he 
will not detect and counteract the bias of the witnesses. For 
the discovery of truth by the judge, both in fact and in law, 
the best instruments in the world to assist him are opposing 
examiners and counsel. The conflict will strike it out, as the 
spark is struck out by the flint and steel. 

" The advantage of a cross-examination is, moreover, 
almost lost by [the French system] to the adverse party. 

168 



1836] PARIS 

The mere delay is sufficient to enable a prevaricating witness 
to collect himself, and the judge, if he disapproves the de- 
sign of counsel, may defeat it by varying the terms of the 
question. The objections to the practice are, indeed, endless, 
unless we adopt a wholly inadmissible theory, — that both the 
counsel and the judge always want to learn the truth, and the 
witnesses always to speak it. It can answer only one good 
purpose that I can discern, — namely, to prevent counsel from 
brow-beating or bewildering a timid witness, a case that 
rarely occurs, and will never occur if the judge does his duty. 

" Neither in the questions nor in the answers could I per- 
ceive that there was any reference whatever to the rules of 
evidence, as we acknowledge them. . . . Indeed, I believe 
the only rules that the criminal courts follow in regard to evi- 
dence are those which estimate its weight, after it is heard or 
received. Nothing would seem to be excluded. Unless juries 
in France are much more perfect tribunals than in England 
or America, parties have no safety in either criminal or civil 
cases, unless the evidence is scanned before it is heard. I have 
had sufficient experience to know that judges are a thousand 
times better triers of evidence than juries, and that the latter 
should not be permitted to hear anything that is not, in the 
language of our law, competent. It may look captious in 
counsel to be forever objecting to incompetent testimony; 
and unless the judge will support him, it may sometimes hurt 
his case with juries, such as they have been made by flattery 
and by unreasonable deference, to the prejudice of the right- 
ful authority of the court. But it is the true course for 
counsel, and if I were to live my professional life over again, 
I would follow it even more than I have done. 

" The mode of examination, and the latitude taken in it, 
gave rise to the most dramatic scene I have ever beheld out 
of a theatre. A witness who was under examination stated 

169 



HORACE BINNEY [JEt. 56 

that when the alarm of fire was first given in the village the 
defendant was seen by him in a certain position. The presi- 
dent said that this seemed to be in contradiction to what 
another witness had said, who had been examined the pre- 
ceding day; and he called that witness up and made him 
repeat. He not only repeated, but said that at the time the 
first witness mentioned the defendant was elsewhere ; and the 
president immediately asked the defendant (and in a capital 
case, too!) how that was. The defendant rose and not only 
denied, but vouched another witness to contradict, what had 
just been said, which witness the president also called and 
examined; and thus there were three witnesses on the stage, 
with the defendant (whom all Berry er's efforts could not 
silence), the president of the court, and the parti civil, the 
prosecutor, all talking at once, and with about as much 
vivacity as I had seen the same number of persons a night 
or two before go through a scene at the Theatre Francais. 
How the truth fared in the melee I was not sufficiently 
acquainted with the bearings of the facts to know. As soon 
as the colloquy was over, the president went on as before with 
the first witness. 

" All this time the jury did not seem to be thought of. 
The witnesses spoke to the judge, the judge to the witnesses, 
and the jury took no part even in the livery scene I have just 
mentioned. The case turned too much upon a conflict of 
testimony to be interesting to me, and I left the court after 
hearing Berryer on some incidental matters, without return- 
ing the next day to hear his summing up to the jury. On 
one of these points I recollect his drawing himself up to his 
height, and, with the roar and violence of a cataract, abso- 
lutely burying in the deep an official of some kind who ap- 
peared to be of counsel with the prosecutor, and who had 
presumed to deny something that Berryer had said. The 

170 



1836] PARIS 

defendant was finally acquitted, and then I saw in one of 
the French papers that Berryer had refused to take for him- 
self the fee which Dehors had made up for him, but had given 
it as a portion to Dehors's daughter, who was engaged to be 
married: all a la mode francaise" 

While in Paris Mr. Binney met Baron Pichon, whom he 
had previously known as charge d'affaires of the French 
legation at Washington, and who, in 1796-97 had held a post 
in the office of Talleyrand, then Minister of Foreign Affairs. 
The baron told Mr. Binney of an incident of that day, which 
the journal records as follows: 

" It is well known that the French government regarded 
the recall of Mr. Monroe by General Washington with dis- 
satisfaction, and would not receive and accredit General 
Pinckney, who was appointed minister to France in his place. 
At Mr. Monroe's audience of leave, Barras, who was chief 
of the Executive Directory, made a reply to Monroe's fare- 
well speech, and took occasion in it to distinguish between 
the people of the United States and their government, in a 
manner highly insulting to the administration, and which 
kindled a flame of resentment in all the people who were not 
already taken in the snares of Mr. Jefferson. The speech 
of Barras, Baron Pichon informed us, was to his knowledge 
prepared by Tom Paine at the instance of Mr. Monroe, 1 with 
the approbation, of course, of Talleyrand, Barras, and 
others. The refusal of the Directory to accredit General 
Pinckney was, he also said, the work of Mr. Monroe. The 
object of this treasonable complot was to bear upon parties 
in the United States, and to sustain the Democratic party 
under their defeat in the recent election of Mr. Adams to the 
Presidency. 

1 Monroe's connection with the speech is denied by his admirers. There is, 
of course, no legal proof of it. 

171 



HORACE BINNEY [Mt. 56 

" I am not aware that Baron Pichon had any motive 
whatever for misrepresentation. I do not believe that he 
misrepresented the facts in the slightest degree. The papers, 
he said, passed under his own eye in the Bureau des Affaires 
Etrangeres. His post was a confidential one. He held it 
through the period of the interrupted relations between 
France and the United States which ensued, and was confi- 
dentially employed by Talleyrand to bring about a restora- 
tion of them, which began in a correspondence between 
Pichon and Vans Murray, the American minister in Holland. 
Mr. Adams was much censured for again sending ministers 
to France, after the return of Marshall and his colleagues, 
without some amends from France for their treatment of 
our envoys. His act increased the divisions of the Federal 
party, which finally destroyed it. Had he been aware of this 
anecdote, it would before this have made a figure in the 
political history of the United States, as well as in the private 
history of Mr. Monroe. General Washington, it must be 
admitted, was an admirable judge of men. Though he ap- 
pointed Monroe, the latter never had his confidence, nor 
deserved it." 

During Mr. Binney's visits to Paris there were many 
signs of the political unrest which prevailed in Louis 
Philippe's reign, and which has, indeed, prevailed more or less 
ever since. His journal contains a few references to the state 
of popular feeling. 

" July 19, 1836. . . . At the close of the entertainment [at 
a circus] a little fellow, called in the bill Le petit Auriol, came 
forward in the mimic dress and hat, and with mimic manners, 
of Buonaparte. He did not say a word ; but he walked, and 
put his hands behind his back, and took snuff, and moved his 
head up and down without moving his body, and at every new 
turn the whole house bore testimony to the faithfulness of 

172 



1836] PARIS 

the imitation. But the manner in which they did it was what 
struck me most. There were no vivas or huzzas at any time 
of the performance, very little clapping, indeed. Through- 
out, the spectators, as at every French spectacle that I saw, 
were as far from an eclat of any kind as from dulness. They 
were cheerful and highly pleased, as they shewed by their 
attention and their smiles and an occasional murmur of de- 
light. But at the imitations of JLe petit Auriol there was a 
mixture of smiles and sighs, a deeper breathing than common, 
and such tones as showed that the chords of their hearts had 
been touched. Yet the Emperor had gone into banishment 
more than twenty years before, and most of the spectators 
had never seen him. It was to be explained only by the 
supposition that the memory of his person and personal habits 
and gestures had been kept alive by the deep affection and 
admiration of those who had seen him, and were thus known 
familiarly to those who had not seen him. So it now is with 
Washington and the people of our days. I do not mean by 
this to compare Washington and Buonaparte ; though unlike 
as they were, I have no doubt that there was something in 
Buonaparte that touched the French people, and especially 
the people of Paris, as nearly and intimately as anything in 
Washington has touched us. More so. Much more so. Of 
one thing I am certain, that, despot as he was, the weight of 
his sceptre was not felt in Paris ; and that either by what he 
did for their pleasure or their ambition, or by what his suc- 
cessors have omitted to do to these ends, there is in the now 
living and moving mass in that city more affection, admira- 
tion, and enthusiasm for him than for any other man or 
name. . . . 

" The period of my first visit was marked by great solici- 
tude among the friends of the King for the safety of his 
person, attempt upon attempt, of the most daring kind, 

173 



HORACE BINNEY [Mt. 56 

having been made in the course of that year. The King 
himself yielded to it, though it was said he did not partake 
of it. The daily talk was of conspiracies against him. He 
consequently did not at this time appear in public, nor were 
private individuals presented to him. The opening of the 
splendid arch, which had been erected at the Barriere de 
l'Etoile, was appointed to take place at the approaching cele- 
bration of the trois jours, and a great military display was 
intended to accompany the spectacle ; but there were so many 
threads of conspiracy in the hands of the police, it was said, 
as made it inexpedient for the King to appear at the celebra- 
tion, and it therefore did not take place in the manner in- 
tended. We had no disposition to be in Paris while the Rue 
de Rivoli perhaps should be unpaved for the purposes of 
another insurrection, and accordingly made our arrangements 
to depart upon our tour beforehand." 

From Paris Mr. Binney went by Belgium, but recently 
established as a separate kingdom, Holland, still armed and 
only prevented by the disapproval of the Powers from re- 
newing hostilities, the Rhine, and the Black Forest to Swit- 
zerland, whence he entered Italy by the Simplon Pass. In 
a letter to his son, ten years before, he had confessed with 
regret to " the want of a very keen relish for mere nature," 
but if this self-criticism was justified, what he then lacked 
was rather the development of the appreciative faculty than 
the faculty itself. Certainly the journal of this tour does not 
show any lack of appreciation of natural scenery. Thus of 
an evening at Thun he wrote : " My chamber in the hotel 
looked out on one side from the southwest to the southeast, 
but I did not perceive the treasure it opened to me until I 
had extinguished my candle and got into bed. A bright moon 
was then shining, and directly in front of me lay the Bliim- 
lisalp, its broad summit spread like an inclined plane before 

174- 



1836] SWITZERLAND 

me, glittering with its eternal snows under the moon. I 
sprang from my bed to the window to take in better this 
splendid scene, and for an hour or more I kept between the 
window and the bed, unable to leave the view for more than 
five minutes at a time." 

Of the view from the terrace at Bern he wrote : " I could 
not cast my eyes to the Aar, follow it until it was lost under 
its high shores, and then rise up to the Bliimlisalp and the 
Jungf rau and the brother peaks, without sighing that my lot 
debarred me a daily walk over this same terrace." 

Of the view at Arona he wrote, after mentioning the 
colossal statue of San Carlo Borromeo: " I did not cease to 
think of [the statue] as a much poorer shew than a mammoth 
cheese or a big pumpkin until I looked across the lake to 
Augera from my bedchamber window at Arona, and beheld 
under a bright moon such a scene as drove from my mind 
all recollection of the absurdities of man. A high promon- 
tory shoots out into the lake from Augera, bearing on its 
summit the ruins of an ancient castle, with which the moon 
worked witchcraft." 

In Switzerland the political institutions, wherein aris- 
tocracy was more intermingled with democracy than is now 
the case, were an additional subject of interest, and it is 
characteristic that Mr. Binney's journal contains a detailed 
statement of the constitution of the Confederation, and of 
every canton which he visited. On one occasion he was able 
to learn something of the way in which public opinion made 
itself felt. 

" As we approached the city of Zurich, we met a number 
of long, low wagons, filled with men, returning to the coun- 
try. In one or more of them they were singing a hymn or 
psalm, not vociferously, but in the ordinary tone of church 
music. The men were well clad, of apparently good frames 

175 



HORACE BINNEY [JEt. 56 

and health, but none of them, I think, of more than the aver- 
age height. Some of them had the leaves of the fir or pine 
in their hats or button-holes. They had been at a public 
meeting in the city. When we arrived, the town was full. 
It was said that twenty thousand had assembled there to 
testify their opposition to a demand the French minister had 
made upon the cantons to expel certain persons who had 
been plotting within their territories mischief to the Orleans 
dynasty. Young Napoleon, the nephew, was the pivot of 
these conspirators. The Zurichers had a regular town-meet- 
ing, adopted resolutions, made speeches, fired a few big guns, 
and retired quietly home. It was so truly American that I 
felt as if I had got there too. It was the first time on the 
Continent that I recognized the existence of the people." 

The journey to Milan was made in company with the 
family of Mr. George Ticknor, an old acquaintance of Mr. 
Binney's. After a trip to Venice and the Lombard cities, he 
rejoined Mr. Ticknor at Milan, and the two parties set out 
together for Florence, or rather for the Papal quarantine 
station at Castel Franco, a stay in which was a prerequisite 
to going farther south, as the cholera had been severe in 
North Italy, and the dread of it still continued. The quaran- 
tine system, however, seemed intended as much to squeeze 
money out of travellers as to exclude the disease, and, to Mr. 
Binney's mind, had no sanitary value whatever. His journal 
describes it with some detail. 

"Wednesday, 19 Oct. [1836.] The first post after 
leaving Parma for Bologna is Sant' Ilario, a short distance 
within the territory of Modena ; and before crossing the line 
it was necessary to submit to divers sanitary ceremonies of 
a most edifying kind. I will therefore endeavour to describe 
them. 

" At the boundary line our carriages were stopt, the post- 
176 



1836] ITALIAN QUARANTINE 

horses were taken off, and the postilions rode soberly back 
to Parma, leaving us in the road. No other horses were in 
presence or in sight, nor could we see where they were to 
come from. As we were still, however, in Parma, I thought 
I might alight and look around until further orders. Just 
by the line were a number of persons employed in drawing 
off hogsheads of new wine or must on the Modena side, and 
putting it into hogsheads on the Parma side. The hogsheads 
from Parma were, I presume, not permitted to enter Modena, 
and the wine would only come out in buckets. My servant 
brought me a cup of the must, which was good, and which is 
reputed to be wholesome. I did not like it, however, as well 
as new cider, and felt no disposition to try a new article 
extensively, which might play a dangerous and very critical 
trick in cholera times. 

" A signal was soon given for returning to the carriage, 
and then several persons approached, who held communica- 
tion with us at a most respectful distance in the road. Our 
passports were thrown to them, they were taken up by tongs, 
placed in a smoking box, and most villanously fumigated. 
We perceived that after being smoked for ten minutes the 
principal functionary opened the papers with the tips of his 
fingers, held his nose well off while he read, and kept himself 
cautiously to windward. Great solemnity was observed, and 
everything like a horse laugh kept under by these people, at 
least until we should be gone. Then no doubt they took their 
satisfaction. 

" After reading, and writing a vise, a bill of the expenses 
was drawn up and thrown into the road for our couriers to 
pick up and pay, and when they signified that they were 
ready, a tin cup containing some disinfecting liquor was held 
out to them at the end of a ten-foot pole, and the money was 
dropt in. 

12 177 



HORACE BINNEY [2Et. 56 

" Now appeared our post-horses approaching from Sant' 
Ilario, and with them a carriage and two horses, out of which, 
within the Modena jurisdiction, stept two good-looking fel- 
lows in uniform, with an epaulette on each, and rather a 
smiling face, but armed with a carbine each, and I know not 
what else, and there they remained for the present. 

" Our passports were thrown into the road for the 
couriers to take up, and our carriages were then pushed by 
some Parmesan man-power until the poles of the carriages 
were fairly in Modena, without any entrance by the pro- 
pelling force. Horses were then put to, and we passed 
slowly, until we had got beyond the officers and their car- 
riage, when a halt was ordered. The carbineers got into their 
carriage, and drew up in our rear, and after a communica- 
tion that their orders were to shoot us if we attempted to leave 
the carriage, we all went ahead. 

" Such are the Duke of Modena's initiatory precautions 
against the cholera, a disease that everybody on earth but the 
Duke knows to hold quarantine in contempt, that springs up 
into the air from the places it attacks, and then down again 
into some other place without reason or rhyme, and then up 
again before its victims can be counted, as if it had been a 
vulture that had pounced upon his prey and was off before 
he could be seen. 

" The Duke, however, did not stop here. We were not 
permitted to pass through Reggio, but stopt on the outside 
till horses were brought to us ; and although there were fifty 
persons of the lower order in the neighbourhood of our car- 
riage, there was not one who did not keep carefully to wind- 
ward. Some of them were beggars, squalid and in rags, and 
execrably dirty, and you may imagine that their apprehension 
did not keep them farther off, as we had not the choice of 
getting to windward of them. 

178 



1836] ITALIAN QUARANTINE 

" Modena we passed through as a pauper is passed 
through a township where he has no settlement. There was 
no way outside the walls, perhaps. I think our post-horses 
were changed within the town, but we did not leave the car- 
riage, and the carbines were close behind us. I could see 
smiles, however, and tittering. It was a money-making affair 
under pretexts, and without any real apprehension or cause 
for it. 

" At two posts from Modena we crossed the Panaro, a 
small river, on a good bridge, the long pole and tin cup having 
been held up to the couriers for the bill ; and in a quarter of 
an hour more we were whisked to the left into a building look- 
ing very much like a penitentiary. Gates without and gates 
within were unbarred and barred again to let us into the 
interior and to keep us there, tarn to take our bodies, quam to 
keep them, until it was known whether we had the cholera or 
were going to have it. 

" Castel Franco is on the borders of the Bolognese terri- 
tory, and may have been a fortress, — I mean the place we 
inhabited. The town itself is inconsiderable. Three sides of 
a square, of probably eight acres, built up with structures that 
might have served for granaries or barracks, and the fourth 
side with a lofty stone wall, made our inclosure. The interior 
was an ample grass lawn, where we could walk in dry weather, 
and the buildings or some of them had covered arcades, where 
we could walk when the weather was bad. Our dormitory was 
a fire-proof, perhaps a bomb-proof, stone building, for the 
most part, but not in our quarter, having iron bars like a 
prison at the windows. The ceilings were arched, the floors 
stone or brick, the walls extremely massive. The apprehen- 
sion of fire was reduced to its minimum. 

" The word ' quarantine' did not appear in any of the 
instructions that were given us for our government. The 

179 



HORACE BINNEY [JEt. 56 

thing was called contumacia, and we were described as con- 
tumaci, as if we had come there in contempt of court, and 
were criminals. The punishment for our contempt, except 
the mere confinement, was not severe. Our party had sepa- 
rate apartments assigned to us, for sleeping and for eating. 
We had also servants allotted to us to make our beds, sweep 
our rooms, and serve our meals; and these were as much 
contumaci as ourselves. They came in with us, and might 
go out with us, and were under all the restraints that we 
were. 

" The principal servant, named Malaguti, a young man 
of twenty-five, was a being that it would be impossible to 
find from Passamaquoddy to Cape Florida. He spoke 
Latin, was, he said, of respectable parentage, able-bodied, 
and rather good-looking, civil and obliging, and the most 
humble, submissive, timid creature that I can conceive of. 
His bringing up had crushed him. He did not feel himself 
to be of the same race with myself; he did not certainly act 
as if he so felt himself ; and he complained to me that he was 
without capacity to do anything but to serve in that humble 
way. It was only by this complaint that I perceived that his 
education had not quite eradicated the feeling of manhood 
in him. We all liked Malaguti. We never called his name 
that we did not hear his answer immediately. To me it was, 
r Sij Eccellenza/ to the young ladies, e Si, Principessaf and 
he was instantly before us. This was always his style of 
address or response. We were quite sorry to part with him; 
and when we departed, on my giving him a larger fee than 
he expected, he wept like a child, and, begging my pardon 
for the liberty, seized my hand and covered it with kisses. 
It would not be possible to find, in all our country, nor 
perhaps out of Italy, a being so unmanned. 

" Between the line of buildings that we occupied and the 

180 



1836] ITALIAN QUARANTINE 

inner gate there was an open space of thirty feet; and be- 
tween the inner and outer gate were buildings in which the 
quarantine officers lived, and where our meals were prepared. 
At a small window in one of these buildings our servants 
received our meals, and held communication for us with the 
outer world; for they were obliging in all the departments, 
and would send anywhere for anything we wanted. Truffles 
came to us from Bologna, and game, or whatever we asked ; 
but our very crockery was in contumacia. The servants 
washed it, for aught I know smoked it, and only in the 
purified state was it returned to the kitchen through the hole 
in the wall. 

" All persons who came in on the same day were at 
liberty to mess together, a privilege we did not extend beyond 
our own party. All such might shake hands together, but 
persons coming in on different days were restricted in their 
intercourse. If contact of hands took place between them, 
the party who had been longest in quarantine took date with 
the person who had been there the shortest time, and had so 
much more time to suffer. Such a one was properly in 
contumacia. 

" We were not practically restrained in conversation 
without contact, but across the lawn I have spoken of, in the 
centre of the square, were drawn lines, or ropes, about three 
feet from the ground, running at intervals of about six feet 
apart from post to post, over the whole lawn. It was so 
arranged that persons coming in on different days might 
walk and have intercourse in these alleys, separated by the 
ropes. But we did not much attend to this, always avoiding, 
however, the shaking of hands in cases not permitted. 

" During the confinement the weather was in general 
excellent. The many Americans, Russians, and one or two 
Englishmen made pleasant society; and with reading, 

181 



HORACE BINNEY [JEt. 56-57 

writing, and cyphering, that is, doing nothing, we got along 
very comfortably. On the morning of the 1st November, 
All Saints, the doors were opened to us, and we travelled 
with a clean bill of health to Bologna." 

To-day the only danger to travellers in Italy seems to 
be that of having their baggage opened in transit and the 
contents stolen, but at the time of Mr. Binney's trip there 
were reports, at least, of more serious danger. 

" About half a mile from our hotel [in the Apennines, 
between Bologna and Florence] the courier observed from 
the bright light in the windows that the host had received his 
letter of advice, and was prepared for us ; and from the time 
of this discovery the forest-trees looked larger and the Ap- 
ennines less savage, and in a few minutes we were by the 
side of roaring fires and at a good supper-table, for which 
a cold and hard day's ride had prepared us. Our host was 
all civility, and our bedrooms and beds most comfortable. 
The house had always been famous for its accommodations, 
very much beyond what a traveller requires to satisfy him 
after a day's hard travel in the mountains; but it had also 
been famous for giving shelter to robbers, who robbed and 
murdered the travellers soon after leaving their hospitable 
host. The father of our landlord had been executed for such 
peccadilloes, but his son was not thought to have forgotten 
the lesson. We did not feel ourselves entirely safe, however, 
the next day until we had crossed the summit and descended 
to Caf aggiolo. ... 

" After passing through Spoleto [some weeks later], we 
went through a narrow pass in the Apennines, dark, savage, 
and with as bad a reputation as any part of the country 
between Florence and Rome. As we were going up the hill 
near the top of the pass, I lagged behind the carriage, having 
preferred walking, but my servant immediately came to me 

182 



1836-37] ITALY 

and begged me to keep nearer the carriage. He said he 
would explain the reason another time, but it was unneces- 
sary. . . . When we were down we found ourselves at the 
close of day in a black-looking village, with knots of ill- 
looking idlers about the post-house, talking of a robbery that 
had just been committed, and they invited us to stay the 
night. I was none the more willing to stop for such a story, 
for if there had been or was to be a robbery, I thought 
Strettura must be the place. We accordingly pressed on, 
observing the precaution not to light our lamps, until we got 
out of the infected district, and in an hour or so reached 
Terni in good safety. On leaving it next morning, we had 
the pleasure of seeing two ' gentlemen of the road' sitting 
handcuffed and pinioned in a cart, three or four officers 
alongside them, and horsemen armed with carbines imme- 
diately behind. By this retinue, they must have been des- 
perate fellows." 

At Rome Mr. Binney's interest in sculpture led him to 
make the acquaintance of Thorwaldsen. 

"January 11, 1837. . • . Thorwaldsen's studio has the 
models of his Christ and Apostles, the marbles of which were 
sent to Copenhagen. I confess they were above me. The 
style was too severe, and while it was evident in these, it was 
more so in his Graces and Venus. There were also among 
the plaster models those of his head of Napoleon, of Byron, 
and of Scott, and I liked none of them. The marble of his 
bas reliefs of the Triumph of Alexander, which have been 
executed in stucco in the Pontifical Palace on the Quirinal, 
was more to my taste. I was, on the whole, grievously disap- 
pointed, and it was of that painful kind which springs not 
from the defectiveness of the work, but of the observer, for 
Thorwaldsen's reputation is perfectly established. It was 
impossible to find fault with any of his works as wanting 

183 



HORACE BINNEY [^Et. 57 

truth, or proportion, or classicality. They had all this, but 
they all had the stern and severe character that had been 
transformed from the living countenance of Washington, 
and perhaps from the old Greek philosophers, into their busts 
and statues. Byron had no right to look so, nor Scott, nor 
even Buonaparte, still less Venus and the Graces. . . . 

" Friday, 13 January. ... I left Thorwaldsen's studio 
with so unpleasant an impression of his works that I was 
determined to try the effect of an introduction to him, to see 
if an hour's conversation with him would have any effect of 
softening them to me, of bringing them down to actual life, 
of getting some sympathy for me, which they seemed to 
want. Accordingly, after passing an hour this morning in 
the studio of Tadolini, a Bolognese sculptor, where the usual 
works of Venuses and Graces were going on, and with so 
little about them to take hold of that I brought nothing 
away, a friend took me to Thorwaldsen's residence by ap- 
pointment, and introduced me to him. My introducer then 
left me, and I passed two hours with the agreeable old man, 
but upon reflection what an interview it was ! 

" The apartments and the house in which Thorwaldsen 
lives are near the Piazza Barberini, directly north of the 
Quirinal, and like his studio, near the same place, are the 
roughest things possible. The three or four rooms which 
he seemed to occupy had little or no furniture, being crowded 
with paintings on the walls, pieces of sculpture in various 
parts, and a figure as large as life which he was employed in 
modelling, a cloth being tied round the head and body, so 
that I could not tell what it was. 

" In a corner of one of the smallest of the rooms was his 
bed, a mattress, or a cot-bedstead perhaps, made for the day, 
but by no means remarkable for the proprete of the coverlet 
or of the linen. It may be recollected that it was near the 

184 



1837] THORWALDSEN 

close of th>? week, and a little in advance of ' clean sheet 
day.' But directly at the head of the bed was a cartoon 
of the Virgin and Child by Raphael, the last thing that his 
eye rested on as he retired to rest, and the first thing that it 
beheld in the morning, and I dare say he thinks little of the 
colour of the pillow that is under it. 

" The artist has often been described, I suppose, but I 
must describe him for himself. His toilet was not made, 
and I am not certain that it ever is. His outward covering 
was an old great-coat, reaching nearly to the ankles, and tied 
round the waist with a bit of rope. The colour of the robe 
de chambre, for I dare say it was known by that name, was 
originally, perhaps, gray, material known among us as lamb- 
skin, now whitened with marble-dust and plaster, and be- 
speaking its affinity to a dealer in flour of some kind. 

" The artist's feet were, I think, without stockings, and 
were thrust into a pair of those pantoufles that are some- 
times given to visitors to move over the polished floors of 
palaces. There was no danger, however, of slipping on 
Thorwaldsen's floors, had the polish been given to my own 
soles. There had been neither water nor rubber upon them 
within the memory of man! 

" On the old man's head was a cap of some kind, cotton 
or woollen, without shape, lying upon the head rather than 
covering it, and underneath on all sides were straggling locks 
of hair, of a dirty gray, having nothing soft or silky or 
venerable in them, but suited very well to his face, which 
was square rather than round, chiselled by nature, rather 
than moulded or modelled, pale but not sickly, and lighted 
up by a pair of light-blue eyes, which belonged exactly to 
the colour of the hair and complexion. The expression was 
kinder and more benevolent than I should have looked for 
in that square and rather severe countenance. 

185 



HORACE BINNEY [Mt. 57 

" He received me very kindly, with the modesty of one 
who had never known what flattery was, and, carrying me 
about his rooms to shew me what was in them, began con- 
versation with me in French. Yes, French it was, more 
French certainly than anything else under the sun, yet such 
French as never before was spoken, and, unless they make 
a plaster model of it, will never be spoken hereafter. He 
split it off in blocks, but it was not blocks of Carrara, nor of 
any other homogeneous stone, but real breccia, pudding 
stone, — French, Danish, and Italian, all mixed together, 
sometimes most of one and sometimes most of the others. 
When it was most French or Italian I guessed it pretty well, 
when it was most Danish I was thrown out completely, and 
sometimes did not get the scent again for three or four min- 
utes. He was very communicative, and the only use of my 
French was either to shew (sometimes against conscience) 
that I understood him, or to edge him on when he seemed to 
be coming to an end. 

" Thorwaldsen is reputed to be rich, and therefore works 
only at pleasure. He has one child, a daughter married in 
Rome, and this, it is said, is his only bond to Rome. If he 
ever had a wife, this daughter is not her child. He told me 
that he wished to live to finish a work upon which he was 
engaged, a history of the progress of the arts, in bas relief, 
upon which he employs his leisure. It begins with Apollo 
and Pegasus, — high enough up, certainly, — and how far he 
has brought it down he did not say. The praise of excelling 
Canova or any other modern artist in bas relief is, I believe, 
not denied to him by any one. His superiority in statuary is 
not so generally conceded. His heart, I thought, was not in 
Rome. He seemed sensible of the kindness and homage that 
had been shewn him there, but he spoke of returning to 
Copenhagen with enthusiasm. He had made his country a 

186 



1837] THORWALDSEN 

part of himself, and himself a part of his country, and it 
was not wonderful that he should want to return. 

" He pointed out to me the merits of several paintings 
on his walls, almost all quite modern, most of them painted 
and presented to him by his friends, and among the rest the 
best portrait of him I have seen, by Horace Vernet. I mean 
the best resemblance. 2 I have never seen a French portrait 
that pleased me as a painting. He praised some of them 
lavishly. 

" I thought I would try him in his own art, and said, 
I Sculpture has confessedly made great progress during the 
last half -century. We seem to be getting up to the eminence 
on which the Greek sculptors stood. But is it so with paint- 
ings? And how do we account for its not being so, with the 
hundred- fold more beautiful works in painting than in 
sculpture to instruct and inspire the painter? We are but 
three centuries from the finest paintings the world has ever 
seen, and have myriads of these master-pieces around us in 
Rome. Why are they not imitated ?' 

" ' Oh,' said he, ' painting is doing well. Time does a 
great deal. It softens colours and tints so admirably. 
When these shall have had that advantage it will be more 
just to make the comparison.' He warded off very adroitly 
the compliment I had intended for himself, but he did not 
satisfy me. 

"He then paid me in my own coin. Among the modern 
paintings were two or three sea and water pieces, and one, 
I think, of the Bay of Naples, with several ships in motion, 
— English, Danish, American. Running his ringer over it, 
he said, ' Who places a ship on the water like your country- 



2 One of the best resemblances of Thorwaldsen may be seen in a head of 
Lorenzo de' Medici, at the front of the American edition of Roscoe's life of him. 
(Note to the MS.) 

187 



HORACE BINNEY [JEt. 56-57 

men?' He passed with the point of his finger over the out- 
line of one of those clippers, or flying schooners, which seem 
to be distinctive of American taste and skill in ship-build- 
ing. ' It has life,' he said. ' It does not sleep even when it 
is at anchor; or if it does, it is with one eye open.' I had 
nothing to reply but a smile and a bow. 

" I have rarely passed a couple of hours more delight- 
fully. He was spirited and bright, but kind, familiar, and 
simple. The character of the artist has in some degree 
affected the impression of his works upon me; but still I 
cannot think that he is equal to Canova, remote as the works 
of Canova are from those divine remains of the Greeks which 
the Gallery at Florence, and both the Vatican and Capitol in 
Rome give out so abundantly." 

Another celebrated man, though very different from 
Thorwaldsen, whom Mr. Binney met in Rome, was Bunsen, 
from whose society he seems to have derived much pleasure. 

"Wednesday, 14 December [1836]. The minister of 
Prussia, the Chevalier Bunsen, the secretary and successor 
of Niebuhr, occupies a house on the Capitoline Hill, and is 
perhaps a better authority for the true site of the temple of 
Jupiter Capitolinus than Van or Nibby. He informed me 
that his house stands on a part of its very foundations, and 
as I passed with him this morning into the garden, he pointed 
out to me a part of the foundation wall as being the ipsis- 
simus. If so, the Aracoeli has not the honour, for the palazzo 
of the minister is to the northward of the steps, perhaps three 
hundred feet, and the Aracoeli is to the southward and imme- 
diately adjacent. . . . 

" Mr. Bunsen is not only a Protestant, but deeply at- 
tached to the liturgy of the Church of England. He ap- 
peared to take an interest in the American Episcopal Church, 
and conversed with me much about it. He had little doubt 

188 



1836-37] ROME 

that Prussia would obtain the Episcopate from England, 
and would introduce a liturgy into the Prussian Protestant 
Churches. . . . 

" Monday, 26 December. Being fresh from an assembly 

of Pope and Cardinals, I took the liberty of asking M. 3 

his opinion of the religious and literary character or attributes 
of these personages. He is a very competent judge, having 
resided a long time in Rome and, I may say, among them, 
as much as a Protestant can do. He is a man of great 
accomplishments himself, a scholar, a linguist, but withal, I 
may suppose, an uncompromising Protestant, and therefore 
possibly not impartial, certainly not favourably inclined. I 
give you the result of his remarks this evening during the 
two hours I passed at his residence. 

" The state of religion in Rome is the worst possible, — 
an affair of priestcraft and ceremonies. The Pope ( Gregory 
XVI.) is ignorant and fanatical. He is thought to have a 
decent acquaintance with Latin, but he cannot read a sentence 
of Greek in the New Testament. This seems scarcely 
credible. 

" As a body the Cardinals are without learning. One of 
them in prospect, Angelo Mai, formerly the librarian of the 
Vatican, is now experiencing their bigoted hatred of learn- 
ing, and must sacrifice his own love for it to get into the 
order. He had prepared with great care a copy (or trans- 
lation, I forget which) of the oldest Greek manuscript Bible 
in the Vatican, scrupulously compared and critically anno- 



3 The journal has this note: " I may now write the name of this gentleman, 
as he has been for some years dead. It was M. Bunsen, the Prussian Minister, 
and the conversation occurred in his house on the Capitol Hill, where, upon his 
general invitation, I paid him a perfectly unceremonious visit in the evening, 
found him in his slippers, with Mrs. Bunsen, an English native, and their many 
children about them, sipping their tea, of which I partook, and passed a most 
refreshing two hours, without interruption. July, 1868." 

189 



HORACE BINNEY [JEt. 56-57 

tated by himself, in eight volumes octavo. It has long been 
ready for publication, and he has been waiting as long for 
permission to print it. The permission does not come. The 
work is not thought to be necessary. They have the Vulgate! 
If Mai's work is not already burnt, which is probable, it will 
be. M. [Bunsen] has heard that it was about to be. There 
was an era when better things were looked for. It was when 
the Papacy was expected to fall to Cardinal Consalvi. It 
was promised, and it was treacherously given to another. The 
present Pope was expected by nobody, and wished by nobody 
but as a pis alter. He was chosen for spite. 

" This account may appear improbable in an age when, 
though learning is not so common as it was, it is shameful 
to be without it, even in an academical body, and more so in 
a conclave of Cardinals. As nothing was said against the 
personal morality of the Cardinals, we may suppose them 
not to be very vulnerable. The stories in regard to the Pope 
are supremely absurd. As to their religion, there has been 
no period when perhaps it has been any better than priest- 
craft and ceremony. Still, the faces of more than one indi- 
cated an abstemious, ascetic life, and it is difficult to assign 
a motive for this in such a station except religious zeal and 
sincerity, or an ardent love of letters. The remarks do not, 
however, say the contrary of this. They relate to the body 
and its general character. Exceptions in particular cases 
are not inconsistent with general ignorance, irreligion, or 
formality. 

" The impression of M. [Bunsen] was that the indul- 
gence of Protestants in public worship was regretted by 
the Pontifical government, and would be withdrawn on the 
slightest pretext. To reconcile the tradesmen and others who 
live upon the expenditure of Protestant strangers, it cannot 
be conveniently withdrawn without some pretext. The gov- 

190 



1836-37] ROME 

ernment of Rome is a pure despotism, but the Pope has 
heard, no doubt, of the last hair. The camel's back has been 
broken often enough at Rome to kill him forever, but 
Romanism is the miracle that always brings him back to life 
again." 

The carnival season of 1837 gave an illustration of the 
feeling of the citizens towards their government. The 
journal alludes to this, as follows: 

" Saturday, 28 January. This is the first day of the 
carnival, and a miserable beginning it is. The cholera is at 
Naples, has been recently at Ancona, as well as in all parts 
of Lombardy, and the Pope is certain that the Virgin alone 
has protected the city of the seven hills. Prayers have been 
addressed to her daily for the last two months to defend 
Rome from the cholera, and Rome has escaped. The Pope 
has therefore ordered a proclamation, requiring all good 
Catholics to forego the customary light amusements of the 
carnival, and, in fine, prohibiting them. There are to be no 
masks, no confetti, no moccoletti, — nothing, in fine, but some 
miserable horse-races, which, being of short duration, and 
poor even while they last, could have been better dispensed 
with than the others. In substitution, prayers to the Virgin 
are to fill up all vacant spaces. In consequence the Romans 
look very black ; they swear they will not give a single prayer 
more to the Virgin than they would have given if they had 
had their customary recreations. Nor is it matter of recrea- 
tion only; many of the people derive material succour from 
the sports of the carnival, and they lay out their little capital 
weeks beforehand in the requisite purchases. All this must 
be lost, — not only profit, but capital itself; and they look 
very black, their eyes flash, and all say there will be a great 
thunderstorm. . . . 

" Tuesday, 7 February. The Pontifical government, 

191 



HORACE BINNEY [Mt. 57 

being, it said, greatly edified by the good behaviour of the 
people, who had borne the deprivation of the carnival very 
well, at length relented and permitted confetti and moccoletti 
on the last evening of the Saturnalia. 

" You must remember that all burials at Rome are by 
torchlight, and that little tapers or moccoletti are lighted on 
the last evening of the carnival as a derisory funeral cere- 
mony, and the sport of the occasion is the attempt of every 
one to put out the lights of everybody else and keep his own 
burning. You may imagine the merriment which a license of 
this kind may occasion. The confetti are sugar-plums made 
of plaster of Paris, which are thrown about in all directions 
to heighten the fun. It is a season of good-humour and 
boisterous merriment, throwing off all restraint and obser- 
vance of ceremony. In the evening we entered the Corso in 
our carriage, and our servant procured a bundle of rush- 
lights for us. We had not advanced twenty yards before 
our coachman Antonio told us that ... we had better take 
the ladies back to the hotel. All was dark, no lights were 
permitted, and where any one was shewn from an upper 
window violence was threatened unless it should be instantly 
extinguished. We turned off suddenly to our hotel. All 
other carriages were forced off. Numbers of men in white 
hats by a concerted action had done this, and took possession 
of the Corso from one end to the other. The Pope's 
dragoons, under the apprehension of some outbreak, came 
with their cavalry on to the Corso, and the same white hats 
quietly took their horses by the head, and led them off. The 
soldiers or their officers had the prudence not to strike. They 
asked what all this meant. The reply was that the will of 
the Holy Father should be done as he first ordered. The 
carnival should not be buried with moccoletti. It was not 
dead. It had not been alive. It was a case of fausse couche, 

193 



1837] ROME 

and the ceremony did not belong to such an event. With 
the utmost gravity they persisted, committing no disorder, 
permitting none, and giving the Pope to understand, as I 
suppose, that he must not consider he was quit of old scores 
by his ridiculous indulgence on the last day. So the carnival 
ended in true harmony with its previous course. The Virgin 
did not get an additional prayer, but whether the Pope and 
his Cardinals did not get additional curses is a different 
matter." 

The general impression which Rome left on Mr. Bin- 
ney's mind, after two months' residence, is best told in his 
own words: " In reviewing my sojourn in Rome after taking 
leave of it forever, I am struck with the fact that not a single 
pleasurable sensation is associated with anything belonging 
to the people or city that I observed while among them. This 
is not true of any other place or people which I have 
sojourned with for such a space of time during any part 
of my life. I do not imagine the feeling to have been pecu- 
liar to myself. I thought it was common to all the foreigners 
I saw, and, except among the higher classes of churchmen 
and nobles, to the Romans themselves. The causes that 
operate upon strangers and denizens must, however, be 
different. 

" It may not be very easy to divine the cause that in- 
fluenced myself. I sometimes thought it was the air of 
religious intolerance, ever present in city and country, in the 
churches and in the streets. The confinement of the Jews 
opprobriously in a quarter by themselves had some effect 
upon me, but I had seen the same in Amsterdam without 
any such impression, and I was indifferent to the fact that 
it was worse with the Jew in Cologne, where he is not per- 
mitted to abide at all. I felt deeply the abomination of being 
turned outside of the walls to worship God after the manner 

13 193 



HORACE BINNEY [Mt. 57 

of my fathers, in a sort of hay-loft, with hostile guards at the 
door, signifying the insolence of a master in the presence of 
those he despises and hates, but cannot possibly fear. Yet 
I had lived in Italian cities, Milan and Venice, where there 
was no practical toleration of my religion at all, and did not 
feel either degradation or oppression. 

" I might attribute some of the effect to the ruins of 
temples and palaces, which are visible everywhere in the 
southern and southeastern parts of the city, and to the con- 
sciousness that everywhere in those sections you are riding 
or walking over the buried works of the former rulers of 
the earth ; but the truth is that I was never nearer to pleasure 
in Rome than while I was contemplating these ruins. Partly 
the satisfaction of beholding the traces of the majesty and 
accomplishment of the old Romans, and partly the absence 
of the modern Romans, who crowd the plain on the Tiber, 
but whom you rarely see on the Palatine, or Aventine, or the 
wider-spreading Celian, made me better contented to pass my 
time in these quarters than anywhere else. I do not think I 
ever felt melancholy in contemplating any Roman ruin, 
unless it might be the broken lines of the aqueducts, which 
in the deserted Campagna remind you of Tadmor and 
Palmyra. These ruins at the close of day and in the dusk of 
the evening look like phantoms which you may suppose are 
hovering round the graves of Neros and Caligulas, and re- 
proaching them for having led the way to their decay and 
the downfall of Rome; and the absence of every trace of 
life in their neighbourhood makes the sight of them oppres- 
sive. But ruins generally are not the least pleasing part of 
Rome: they are certainly not pleasurable objects of con- 
templation, however instructive and exciting, but you feel in 
their presence rather more comfortably than elsewhere in 
Rome. 

194 



1837] ROME 

" There are pictures, and statues, and frescoes innumer- 
able, of such exquisite beauty that I am compelled to wonder 
that I could not look back to some of them, at least, with 
the gay emotions which the representations of some portions 
of mythology are calculated to excite. Yet whether it was 
the palace, like a prison, in which I saw them, or the neg- 
lected villa, or the proscriptive and intolerant church, or the 
Vatican, the seat of those infernal conclaves from which have 
proceeded the poniards of the Sicilian vespers and the fires 
of Smithfield, I cannot tell. Something, I know not what, 
was always present, not to prevent admiration or astonish- 
ment, or perhaps any intellectual gratification whatever, but 
the heart was not at ease, the spirits were not buoyant, there 
was no gayety of emotion, no animated pleasure. How much 
have I seen of the like kind in other cities in Italy, where 
perhaps I might have discovered some of the same sadden- 
ing concomitants, had my mind taken that direction, but it 
did not, and I saw them not ! 

" Like the poetical lover, who was unable to point out 
the particular feature or grace that made his mistress divine, 
and said it was ' Celia altogether,' so am I compelled, in seek- 
ing for the cause of very opposite effects, to say it was Rome 
altogether. It was her intolerance, her ruins, her prison-like 
palaces, neglected villas, proscriptive churches, and, above 
all, the people whom these things, operating on a proud spirit, 
have made bitter, sharp, sour, intolerant, fanatical, never for 
a moment jovial, gay, or debonnaire. It is Rome altogether 
that accounts for the effect, and I quit her, not sorry that 
I have looked upon all parts of her for two months, but 
heartily glad to get away from her." 

When visiting St. Peter's one day, Mr. Binney's keen, 
and possibly imaginative, eye detected what no other traveller 
seems to have called attention to, — namely, a likeness of 

195 



HORACE BINNEY [Mt. 57 

Thomas Jefferson, though not in the representation of any 
human face. Writing from Rome, he said, " Apropos of 
Jefferson, the best likeness I have seen of him is in the two 
Death's heads in the sarcophagus below the statue of Clement 
X. in St. Peter's. I looked again and again to see if they 
were not intended for a personage rather older than Death, 
but finally had to admit that they were intended for his 
son, who I think, according to Milton, had some of the traits 
of his mother, Sin, and was so far less respectable than his 
father." 

After a stay at Naples, where Mr. Binney climbed to the 
top of Vesuvius with the energy and enthusiasm of a much 
younger man, the party went by steamer to Genoa, where 
the quarantine prevented their landing, thence to Marseilles, 
where four days of the same " solemn farce" were required, 
and thence by land to Paris. 

During the whole tour he lost no opportunity to visit any 
botanic garden or flower show that came in his way, or to 
hear the best music wherever it could be had, in churches, at 
public or private concerts, or at the opera. At Rome he went 
to St. Peter's every Sunday (at an hour that did not inter- 
fere with the English Church service outside the walls ) , and 
usually with the keenest pleasure, but on January 1, 1837, he 
was forced to record that, after hearing some very poor 
music at an early service at the Trinita de' Monti, he had a 
further disappointment. " I tried to mend my fortune by 
going to the Cappella del Coro in St. Peter's, but my fate 
was unrelenting ; for, to my horror, — yea, to my anguish, — 
a solo was sung an eighth above the organ all the way. Be- 
fore it was half over I had a verdadero dolor de tripas, and 
when it was done there was not a tooth in my head that did 
not feel loose. Shocking to begin the year this way, and in 
Rome, too! It seemed extraordinary to me that the officials 

196 



1837] MUSICAL EXPERIENCES 

of the chapel did not drive the man from the organ gallery. 
They sat patiently, however, and if it did not turn to their 
profit as a treat, no doubt it did as a penance." 

The next week, however, he was able to write: " After 
church in my own, I took my usual station in the gallery of 
the Cappella del Coro, and enjoyed the highest musical treat 
I had in Rome. It effaced the horrid impression of the last 
Sunday. Four voices of excellent tone — a basso, a soprano, 
and two contraltos — gave several solos, duets, and quartos, 
and were followed magnificently by the organ and full choir. 
What added vastly to the zest was that I was nearly alone in 
the opposite gallery. The presence of a great number of 
persons, and especially their being near to me, always inter- 
feres with my enjoyment of music." 

One of Mr. Binney's musical experiences at Paris, in 
April, 1837, surpassed all the others. " The greatest musical 
treat I enjoyed in Europe [was] a concert at the Societe des 
Concerts, — Conservatoire, — which began at two and closed 
about four o'clock. The musical corps consisted of about 
eighty. Eight double bassos will serve to indicate the force 
and completeness of the parts. It was the highest exhibition 
of instrumental music that I had ever witnessed or could 
conceive. The leader was Habanek, who did not touch the 
strings of his violin, but, with his bow in hand, his fine, 
tall, erect figure (though obviously a man of sixty) assisting 
all his movements, he preluded the very expression that the 
piece required, sometimes restraining the orchestra by his 
gentle motion to the delicacy of a whisper, and sometimes 
lashing them by the vehemence of his bow into the violence 
and uproar of a hurricane. The first piece was a symphony 
by Tagliasbeck, a name I never heard before, and the second 
Beethoven's ' Symphony in ut minor,' perfectly ravishing. 
It gave me at one time so violent a stitch in my side that I 

197 



HORACE BINNEY [Mt. 57 

had to press my hand against it with great force to remain 
in my seat. If any one required to know what a concert 
should be, — orchestra, salon, and audience, — he need only 
have been present at this performance. . . . The most pro- 
found silence was observed during every piece except at the 
conclusion, and with one other exception that discovered the 
musical breeding as well as sensibility of the audience. A 
passage of most exquisite beauty in Beethoven's symphony 
transported two or three voices into ' Bravo ! Bravo !' and 
then hands not a few were getting into action, when a quick 
and impatient ' hist, hist,' from myself and twenty others in 
my neighbourhood brought all to immediate silence. We 
were losing all that remained of the beautiful passage by this 
ill-timed applause. The orchestra got it with interest when 
the piece was finished. These two symphonies, a trio by 
Mad e Falcon and two men, all French, and a concerto on the 
violin by a young Sieve named Dankla, were the whole pro- 
gramme. Beethoven's symphony made me indifferent to all 
that followed. From the date of this performance I shall 
feel myself authorized to say what is and what is not good 
music." 

Leaving Paris a second time, Mr. Binney reached Eng- 
land in April, after a channel trip of unusual roughness. 

"Thursday, 18th April [1837]. A norther, or nor'- 
wester, had been blowing several days, and was still blowing 
when we came down to breakfast, and when the steamboat 
agents were upon us for both the French and the British 
steam-packets for Dover. Whenever I have my choice I 
take an Englishman for my captain, if I can't get an Ameri- 
can. An old salt named Hamilton had the British mail- 
packet, and I told him I would go with him if he would 
certainly go. He said he certainly would go if the water 
would let him go over the bar, which the shingle packed in 

198 



1837] CROSSING THE CHANNEL 

by the sea had increased, and made its draught less than 
usual; but he did not believe the Frenchman would follow 
him. At five, the hour named, he sent his mate down to the 
pier-head to look at the marks, and when he reported favour- 
ably, off we pushed with a good head of steam, some twenty 
passengers on board, including M. Chevalier, who was going 
on some public errand to London. As we ran down the long 
wharf to the pier-head, the steward distributed his basins by 
the side of each passenger, and gave me one which I pushed 
with my boot to a neighbour who looked as if he would re- 
quire two if he required any. In two minutes' time I went 
to the companion to see how the boat would behave when she 
struck the waves on the bar, but the helmsman told me I 
should be wet to the skin if I did not go below, and I took 
his hint. I had not been down half a minute before we all 
felt that she was in it, and such a line of ugliness as she made, 
and continued to make, for an hour I do not think I ever 
before witnessed. Captain Hamilton gave the ladies his 
cabin, and me a sofa in an adjoining apartment, that I might 
lie down, for standing was impossible and sitting much the 
same. . . . Every man, woman, and child was dead and 
double sick, except myself, my servant, and the crew. . . . 
As we neared the island, and foothold came again, I went 
on deck, and the first word from Captain Hamilton was, 
' Well, sir, the Frenchman would not follow us. He dared 
n't, sir ; he dared n't. I watched him with my glass until his 
pipe was under, and there he lay, sir. He'll never show his 
paddles to this sea. Those French, sir, are very prudent, 
very. They're a cautious people at sea, sir.' ' 

A fortnight in London was followed by a month spent 
in driving through England, and into Scotland as far as the 
Trossachs and Edinburgh. The two places which seem to 
have excited the keenest interest were, as might have been ex- 

199 



HORACE BINNEY [^Et. 57 

pected, Oxford and Cambridge, in Mr. Binney's eyes the chief 
sources of England's greatness. Of Cambridge he wrote: 
" Behind this college [King's] and the others before stated 
[Trinity, Clare Hall, and St. John's] sleeps the Cam, unless 
when its slumbers are disturbed by the wherries of the stu- 
dents, a few only of which we saw, the fleet being laid up 
in ordinary for the long vacation, now begun. Stone bridges 
of classical form span this water, and on the other side are 
walks among noble trees. I sighed as I thought of my youth, 
while walking in their shade, and could I have gone back 
forty years would have selected this from all places in the 
world for my education. But I doubt not it must have 
been an education for England, and not for my own country. 
We are probably better made for our work and the condition 
of our society (only the present condition, I hope) by our 
own colleges." 

Stratford-on-Avon was a keen disappointment, the at- 
tempts that had as yet been made there to preserve the 
memory of Shakespeare not being such as to commend them- 
selves to an enthusiastic lover of his plays. 

" May 4, 1 837. . . . We closed our day with a poor dinner, 
in a poor theatrical tavern of Stratford-upon-Avon, every- 
thing in it and in the town looking as if it were designed to 
belittle Shakespeare, though, thank Heaven, that is not in 
the power of man. The room in which the poet was born is 
there, its walls and ceiling covered with names and nonsense, 
which we felt no inclination to add to; his tomb is in the 
chancel of the church, and his effigy against the wall; the 
hotel has all its apartments named after his plays (I believe 
I slept in ' Macbeth,' and the two girls in ' Juliet' ) ; and 
England has not spent a pound sterling to prevent the 
whole from being as miserable a raree-shew as Punch would 
have preserved to immortalize Judy. The town is a poor flat 

200 



1837] ENGLAND 

affair, the Avon itself had nothing on its waters but dirty- 
barges, and the waters themselves were fast asleep." 

From Liverpool to Manchester occurred the only rail- 
road journey of the tour, and while it was not absolutely 
Mr. Binney's first experience of railway travelling, there 
was still some novelty in it. 

" My carriage was placed on trucks upon the railway 
carriage, and passing quite deliberately through the tunnel, 
five minutes to a mile, making two stops on the road, and 
once returning a little distance to take another track, the 
whole time from Liverpool to Manchester was one hour, 
fifteen minutes, and this time was all we gained, for the rail- 
road cost just as much as the posting would have done. 
Nothing could be more secure, and less shackling or shaking 
than the road, though it must be admitted that the springs 
of my carriage gave a false account of all the roads we drove 
over." 

The tour ended at Portsmouth in June, just before the 
death of William IV. and accession of Victoria, and the 
party reached New York in August, after a safe but tedious 
voyage of over forty days. 



201 



HORACE BINNEY [Mt. 57-58 



IX 

RETIREMENT FROM COURT PRACTICE— GIRARD WILL 

CASE 

1838-1844 

AFTER his return from Europe Mr. Binney confined 
himself to office practice, mainly to giving opinions 
L on legal questions. The opinions by which he is best 
known are those in regard to land titles, and the reliance upon 
these has always been practically as great as upon the policies 
of the strongest title insurance companies of to-day. In 
regard to his retirement, it is said x that an important case, 
involving litigation, was brought to him on January 4, 1840, 
a few minutes after noon. Pointing to the clock, he said, 
with a smile, but firmly, " At twelve o'clock I was sixty 
years of age ; you are too late. I have relinquished the active 
practice of the law. Take the case to Mr. Sergeant." As 
a matter of fact, this could scarcely have been the first 
retainer which he declined on the ground of retirement, but 
he may have made use of the circumstance of its being his 
birthday to make his refusal more emphatic, and thus dis- 
courage similar requests. 

His career in Congress, short as it was, galling in many 
ways to himself, and barren of any visible good result, had 
given the citizens no cause to be ashamed of their representa- 
tive; and from this time on no man in Philadelphia com- 
manded greater respect, or more of the influence which rests 



1 The late Mr. William Tilghman was the authority for the story, and he had 
good means of knowledge. 

202 



1837-38] CHANGE IN JUDICIAL TENURE 

solely on character and ability and is not due to the con- 
trol of the machinery of political parties. This influence 
was not always successfully exerted, but it was always 
recognized, and he continued to be looked upon as a leader 
even long after his great age prevented his appearing in 
public. 

Being of course keenly interested in all that affected the 
administration of justice, and especially the independence 
and integrity of the judiciary, he was very seriously con- 
cerned over the work of the Constitutional Convention of 
1837-38, which submitted certain amendments to the vote of 
the people of Pennsylvania. These amendments changed 
the qualifications for the suffrage ; imposed certain restraints 
on legislative power; subjected the governor's appoint- 
ments to confirmation by the State Senate; made elective 
the offices of justices of the peace, clerks and prothonotaries 
of courts, recorders of deeds, and registers of wills, and, 
most radical of all, made the commissions of all judges run 
for a term of years only. Fairness would have demanded 
that amendments relating to such different matters be voted 
on separately, but they were submitted for adoption or re- 
jection collectively, without any power of selection among 
them. 

Before these changes were proposed there does not seem 
to have been any strong popular wish for any of them, least 
of all for those affecting the judiciary, with whose rulings 
no fault had been found; but, on the other hand, there was 
no decided opposition to them. They seem to have been 
thought a natural development in the line of so-called popu- 
lar government, an inevitable condition of modern life, like 
the chess-board arrangement of our cities, the plainness of 
men's dress, long trousers, stiff hats, or any of the numerous 
sacrifices of the picturesque to the practical which have dis- 

203 



HORACE BINNEY [JEt. 58 

tinguished the nineteenth century. In Mr. Binney's eyes, 
however, the tenure of all judicial offices, even the lowest, 
during good behaviour, was essential to the due execution of 
the laws and the maintenance of the rights of the citizens, 
because by this tenure alone could the judges be free, as far 
as human beings ever can be free, from the temptation to give 
their decisions by the influence of fear or favour. He did 
not expect the governors to appoint ideally perfect justices 
of the peace, recorders, etc., but he knew that their appoint- 
ments were likely to be at least as good as the nominations 
of party conventions, probably better; and he realized that 
the change proposed as to the minor judiciary would but too 
surely lead in the future to the making of all judicial offices 
elective. Could he have foreseen the time when it should be 
the custom for judicial candidates to be practically assessed 
for large contributions to the party treasury, as the tacitly 
recognized price of their nominations, he would have re- 
garded the work of the convention with nothing less than 
horror. 

At the request of those who shared his views, Mr. Binney 
drew up an address to the people of the State, urging them 
to vote against all the proposed amendments, since no dis- 
crimination among them was possible, but the address was 
mainly in regard to appointments and judicial tenure, and 
some parts of it may be worth quoting. 

A third class [of amendments] proposes a restraint upon the 
executive, by making his appointments subject to the consent of the 
Senate v and by taking from him altogether the appointment of clerks 
and prothonotaries, recorders of deeds, and registers of wills, and 
giving it, with one unintelligible exception, to the people through their 
elections. . . . 

If there be any doubtful point among those who have observed 

204 



1838] CHANGE IN JUDICIAL TENURE 

the working of constitutions in the United States, it is this very pro- 
vision for advisory power in the Senate. In many cases, through 
personal influence of the executive, it has no effect. When it has any 
effect, it has been questioned whether it does not take from the execu- 
tive officer the responsibility which should rest upon him, and destroy 
all responsibility by dividing it among numbers. It has been more 
than questioned whether it does not enlarge the influence of intrigue 
and combination upon appointments to office. The true principle for 
guarding appointments to office is to make him responsible who nomi- 
nates the officer, and this responsibility, to be effectual, must be felt 
by him who nominates, and known by every one else. It must be 
single, individual, and unavoidable. . . . 

What are the two great arguments for the tenure of good 
behaviour? They are, first, that judges will in general more faith- 
fully perform their duty when their office is not subject to determina- 
tion by efflux of time or by the pleasure of anybody; and secondly, 
that judicial offices which are so subject will be accepted in general by 
men of inferior attainments only. The force of these arguments has 
been resisted and their truth denied; but both their truth and force 
are admitted by the proposed amendments. Why is a judge of the 
Supreme Court to hold his office for fifteen years, and a president 
of the Common Pleas for ten years, except that the judges who settle 
the law in the last resort, by which we are all bound, may be farthest 
removed from the influence of an expiring tenure, and that a larger 
range of selection from the higher attainments of the bar may be left 
for the bench of that court? . . . The difference in the proposed 
terms of judicial office concedes the very proposition that judges 
holding office for years will be governed by something besides their 
sense of public duty. 

Upon this subject of judicial tenure, suffer us to ask you a 
single question. Constituted as man is, will judges in general be as 
impartial and upright on the trial of a cause when the renewal of 
their offices depends upon the favour of one of the parties, as they will 
be when nothing but misconduct can deprive them of their office? If 
this question must be answered in the affirmative, then the whole ques- 

205 



HORACE BINNEY [Mr. 58 

tion is answered, for in multitudes of causes, and most important 
causes too, the appointing power, or those who create and influence 
it, will be one of the parties in name, in interest, or in feeling. They 
will be so in every case of political excitement. They will be so 
wherever the constitutionality of a popular law is brought into ques- 
tion. They will be so wherever a humble individual, who has no stay 
but an impartial judge, is opposed to a political leader. They will 
be so in every case which extensive public opinion has already pre- 
judged. These are the cases in which the interests of justice, the 
great permanent interest of the public, require that judges should 
be left to the support of an equal mind and undisturbed nerves, to do 
their duty without fear or favour, and yet these are the cases in which, 
if the amendments be adopted, the best judges may feel that their 
solicitude for a family and their love for their station in society are 
knocking at their hearts to persuade them to give a judgment that 
shall be acceptable to the friends who can renew their commission. 
How many will listen to this appeal we cannot tell. Is it wise to 
expose any of them to it? One man in a thousand may come out of 
such a fire like refined gold, and lose his office for conscience sake, 
but of how many of the rest should we have to say that they have 
preserved their office, but that their fine gold has become dim? We 
must deal with men as they are; and if the amendments deal with 
them upon any other theory, they are not fit to become parts of a 
constitution for a community of men. Would any man choose that 
his own cause be tried by a judge who depends for his office upon 
the opposite party? If he would not, let him not choose such a judge 
for any other person. 

This address was signed by a large committee, and ap- 
peared in the papers on September 26, 1838, the election 
being held on October 9. Had a longer interval elapsed, the 
address might have had more effect, but this is doubtful. 
The changes accorded with the spirit of the time, and were 
approved by a large majority of those who took the trouble 
to vote at all in regard to them. While the result may not 



1838] CHANGE IN JUDICIAL TENURE 

have justified all Mr. Binney's fears, it has increased neither 
public confidence in the impartiality of the judiciary nor 
the efficiency of the various executive officers whose positions 
were made elective. 

Mr. Binney's next act in regard to public matters was 
more successful. The Bank of the United States, being 
refused a new charter by Congress, had in 1836 received a 
State charter, and continued in business under its former 
officers, but without the strength previously derived from 
its connection with the national government. Its president, 
Mr. Nicholas Biddle, urged Mr. Binney to become one of 
the directors, as he had for a time been a director of the first 
bank, and also of the second, but he declined. He had too 
thoroughly disapproved the course of the second bank in the 
spring of 1834 (when it failed to persevere in curtailing its 
discounts and retiring its notes, in preparation for winding 
up its business after it had become apparent that Congress 
would not renew the charter) to have any confidence in those 
who were responsible for this vacillation. The new bank 
seems to have been unsound from the start, but, being the 
leading bank of issue in Pennsylvania, it practically con- 
trolled the currency of the State. In May, 1837, all the 
banks in the State suspended specie payments, resuming 
them after a while, but suspending them again on October 
9, 1839. For want of a better currency, the paper of the 
United States Bank continued to circulate, though at a dis- 
count as compared with specie. Some people demanded 
specie of the banks, and even sued for it, but Mr. Binney 
did not, not wishing to embarrass the banks, though thinking 
that they ought at once to take measures to uphold their own 
credit and rid themselves of all connections with the United 
States Bank. The mass of the business men of the city, 
however, cared less about the kind of money with which busi- 

207 



HORACE BINNEY [JEt. 59-60 

ness was transacted than about the effect of a temporary- 
stringency in curtailing business generally, so that all criti- 
cism of the prevailing policy was very unpopular. 

Early in December, 1839, notice was given that certain 
loans of the city would be paid off on January 1, when in- 
terest would cease. The holders of the loans were given the 
option of taking, at par, a new loan at a lower rate of interest, 
which, under the conditions then prevailing, would naturally 
sell at a discount, or of being paid in checks on the United 
States Bank. Mr. Binney held a considerable amount (for 
those days ) of the old loan, but his opposition to the proposal 
was based mainly upon his conviction of its essential dis- 
honesty, and of the loss that it would entail upon those less 
able to stand it than himself. He felt that the time had 
come to call a halt, and, as no one else seemed willing to act, 
he determined to do so alone. Accordingly he wrote to the 
City Treasurer, stating that he was perfectly willing to let 
the loan stand, but that if it was to be paid off he would 
refuse payment by check on any bank that had suspended 
specie payments. 

On January 1 he went to the City Treasurer's office and 
was tendered a check on the United States Bank, which he 
refused. He demanded specie, but the City Treasurer re- 
plied that he had no other means of payment than the check. 
The next day Mr. Binney wrote to Mr. William M. Mere- 
dith, president of the Select Council, stating the facts and 
renewing his demand. Two days later the Public Ledger 
published the letter, and on the 7th an editorial commending 
Mr. Binney's course. He wrote to the Ledger to correct a 
few misstatements in the editorial, and soon after wrote a 
pamphlet, stating plainly all that had occurred. On the 
16th, however, before the pamphlet issued from the press, 
the Councils adopted the following resolution: 

208 



1839-40] PAYMENT OF CITY LOAN 

Resolved, That the holders of the loans made payable on 1st 
January, 1840, who do not wish to receive them, shall be entitled to 
six per cent, interest thereon, payable semi-annually, the Councils 
reserving the right to pay the same at any time, on giving the holder 
thereof one month's notice. 



This was, of course, all that Mr. Binney desired, but his 
success in inducing the Councils to abandon their scheme of 
payment was even less remarkable than the effect upon the 
city's credit, utterly disproving the complaint that any re- 
fusal to accept depreciated bank-notes was an attack upon 
credit generally. What the effect actually was was stated in 
the Ledger of January 29, as follows : 

On the 26th December, before any question as to the payment 
of its loans was publicly agitated, 92 is the best bid for the city's 5 
per cent, of 1851. 

On the 2nd January it was understood that a gentleman, who 
was a creditor of the city to a large amount, and who enjoyed unusual 
weight of private character, had declined receiving bank-notes in 
payment of his debt, and on that day 93^/0 is given for a loan which 
had five years less to run than that for which, with %y 2 per cent, 
interest on, only 92 had been bid but eight days before. 

By the 11th Mr. Binney's letters had appeared in nearly all 
the papers; the rights of a creditor had familiarized themselves a 
little to the public mind, and on that day 97 is bid for the 5 per cent, 
of 1850, an advance in eight days of 3^ per cent, upon a former 
advance. 

About the 17th the papers contained the resolution of the 
Committee on Finance ; the city admitted that those who did not like 
notes need not take them; and on the 20th the city 5 per cent, of 
1846 are sold at 99. 

On the 23rd the report of the Finance Committee had been 
published. The error of the city (though defended) could not be 

14 209 



HORACE BINNEY [Mr. 60 

denied. A precedent is established in favour of its creditors' rights, 
and its 5 per cent, of 1846 is sold at par. . . . 

The advance is not upon the loan of 1840, already due, or the 
rise might be put to the account of specie premium. It is on loans 
redeemable in 1846, 1850, and 1870; too far ahead to speculate 
on suspension and the premium on specie. 

The advance may properly be attributed to the grave lesson 
which has been given upon the unchanging obligation of general 
faith; of faith in offering to perform exactly what is undertaken to 
be performed. This is cause enough for even this effect; for faith 
works miracles in finance as well as in religion. 

If the city be ever forced to ask another loan, it will reap the 
fruits of the services of Horace Binney. Will it wait till then to 
acknowledge them? 

The general tone of Mr. Binney's pamphlet may be 
gathered from these concluding paragraphs: 

I shall here close these remarks, which nothing but the excited 
state of feeling prevalent in this city would have induced me to make. 
After this shall have abated, and whether it shall abate or not, I hope 
to be permitted to pursue my own lawful ends by lawful means. My 
friends and myself have a large interest in the city debt, running 
more years into futurity than my life will last. We have paid both 
full and hard value for it, and I know of no better use to which some 
of my remaining time can be applied than in preventing the city 
from redeeming this debt by value that is neither full nor hard. I 
will, if possible, disturb the concerns of nobody else; and if to set 
the precedent in the right way will give me some trouble, it will be 
of all the more value to those who come after me. 

... I was well aware that nothing could be done by the 
Councils in my personal behalf that must not be done for every cred- 
itor in the same situation. Though I offered privately and in my 
own name to continue the loan, I knew I was offering for all other 
creditors, if they should choose to do likewise ; and the trouble I have 
taken and the responsibility I have assumed are for them and the 

210 



1840] PAYMENT OF CITY LOAN 

public as much as for myself. I would willingly sacrifice the sum in 
question, and I hope more if necessary, for the good of the city ; and 
this is small civic virtue too, for her good is mine; but I should be 
false to my affection for her people, to my pride in her name and 
institutions, and to my filial regard for her very soil, the birthplace 
of myself and my children, if I should sacrifice either this, or any- 
thing, to her injury. 

I have not looked for popular favour in what I have been 
doing, nor have I done it in fear of the reverse. I have acted with 
other motives and to other ends. Popular favour is, without doubt, 
worth having, as a means of doing good, when it is a reflection from 
the clear and warm sunshine of a man's own breast. Except when 
the light of the public countenance is made refreshing from this 
internal source or support of it, it is of no value at all. At best this 
light is of transient and precarious use, cold even when it is brightest, 
often and on a sudden overcast, waning by a law of its own nature 
to a mere thread at last ; and all this perhaps without the least change 
whatever in the observer. I desire the guidance of a more steady 
and enduring light. 

On the part of the United States Bank and its friends 
both in and out of Councils the opposition to Mr. Binney's 
demand was very bitter. They tried, and fully expected, to 
break him down, but he had aroused against them a public 
opinion which was too strong to be overcome. He fully 
realized the seriousness of the situation, and that in case of 
failure his self-respect would probably compel him to leave 
Philadelphia altogether; but having made up his mind, he 
was perfectly indifferent to the consequences, and went 
through the whole affair as calmly as if it had been purely 
a professional matter. It was said by many that no other 
man in Philadelphia could have won such a victory over the 
city government and the banks, or would even have attempted 
it. In a letter of February 7, 1840, to Judge White, Mr. 
Binney reviewed the affair as follows: 

211 



HORACE BINNEY [JEt. 60-62 

Your kind letter was welcome to me, as all that I receive from 
you are. It was worth a great deal more than the " Remarks" which 
were the occasion of it, and which have no claim to what you say of 
them, except from their sincerity. I had no expectation of being 
carried further than my letter to the Councils, until a few days after 
its publication as part of the proceedings of those bodies ; but finding 
that the Whig papers were nervously afraid of the subject, so much 
so as to reject even animadversions upon the act, and that I was 
getting great praise from some sources from which it is quite sus- 
picious to receive it, I determined to tell my own story. As I have 
told my brother Sargent, 2 the only credit I deserve for it I shall not 
get, — namely, that I wrote it in a rage and was able to cut off the 
communication between my liver, which I take to be the seat of our 
bitter feelings, and my pen. I meant to write it, however, in a spirit 
of self-collected defiance, and my friends tell me that is plain enough. 
It has had the rare effect of bringing all, as far as I can discover, 
to one mind with me, and perhaps the best evidence of it is in the 
immediate impression it made upon the city debt by raising the 5 
per cents, to par after they had stood, as you may perceive by the 
pamphlet, at about 90 per cent., deducting the interest then accruing. 
I have answered the use of a post on a wharf, to show the people who 
were going down the stream faster than they wished where they might 
make fast; and, indeed, I do not know any better service that a man 
can render to the community than by thus posting himself; there 
are so few that are satisfied to render so humble a service. I ought, 
perhaps, to say further that I gave it to be understood through the 
town, and modestly (I think) intimated it in the National Gazette, 
that I would follow in the discussion of the subject whenever any 
respectable name would lead me, and at first hoped some one would 
accept my challenge, for I had some saucy things to say if occasion 
should be publicly given. But I am now satisfied that no one (with a 
name) came into the lists. All excitement having been immediately 
suppressed, the matter has had an opportunity of settling into men's 
minds, instead of being thrown off from the surface, as party spasm 



Lucius M. Sargent, Esq., of Boston, who had married Mr. Binney's younger sister. 

212 



1840-42] DISTRICT JUDGESHIP 

always throws it, however good or true; and therefore I may hope 
that good has been done. 

On the death of Judge Hopkinson, of the United States 
District Court, in January, 1842, President Tyler appointed 
Mr. Binney to the vacant judgeship, and the Senate at once 
confirmed the appointment. The President then wrote to 
ask his acceptance of the position, stating that the course he 
had pursued in nominating Mr. Binney without previously 
asking his consent was the only one consistent with the latter's 
character. Mr. Webster, then Secretary of State, when 
sending the commission, also wrote to express the satisfaction 
of the whole Cabinet at the appointment, and his personal 
wish that it should be accepted. The position of District 
Judge for the Eastern District of Pennsylvania is un- 
doubtedly an honourable one, but it offered few attractions 
to a man of sixty -two, whose position at the bar was such 
that his appointment to the Supreme Court of the United 
States had been urged twelve years before and who had for 
six years voluntarily withdrawn from court practice. Some 
of Mr. Binney 's friends urged him to accept, on the ground 
that this appointment would necessarily lead to a higher one 
in the future, but this argument did not appeal to him in 
the least. He would not have accepted any judicial office 
whatever unless it had been manifestly his duty to do so, and 
in this instance there was no question of any duty whatever. 
The commission was accordingly declined. 

Since his return from Europe in 1837 Mr. Binney had 
never appeared in court, and he had no intention of doing 
so again; but in 1843 he was called upon to make the last 
and most important argument of his whole career, the request 
being made under circumstances which appealed so strongly 
to his sense of civic duty that he could not refuse. 

213 



HORACE BINNEY [Mt. 63 

Stephen Girard, born at Bordeaux in 1750, a cabin-boy 
at fourteen and a merchant captain at twenty-three, had 
settled in Philadelphia in 1777 and engaged in trade. A 
man of great industry, energy, and shrewdness, he was re- 
markably successful. In 1812, the government refusing to 
recharter the United States Bank, he bought its building and 
started a banking-house there himself, though still continuing 
in business as a merchant. He died on December 6, 1831, a 
childless widower, with the largest fortune that any one man 
had ever yet made in America. ; By his will he gave to his 
relatives over two hundred thousand dollars, besides making 
a number of bequests for charitable purposes and public im- 
provements, but he left the bulk of his property (worth at 
that time about seven million dollars, and ultimately even 
more) to the city of Philadelphia, in trust to establish and 
maintain a college for poor white male orphans, between the 
ages of six and eighteen. The provisions for the erection 
and management of the college were very detailed, and one 
of them became the subject of much discussion. Being more 
or less a follower of Voltaire, and having the characteristic 
French passion for carrying out an idea which he approved 
to what appeared to be its logical results, without much re- 
gard for the consequences, Girard had thought it necessary, 
in view of the unfortunate multiplicity of religious sects, 
" to keep the tender minds of the orphans free from the 
excitement which clashing doctrines and sectarian controversy 
are so apt to produce," and to this end he provided that the 
scholars should be taught " the purest principles of morality," 
but that " no ecclesiastic, missionary, or minister of any sect 
whatsoever" should ever set foot, even as a visitor, within the 
college grounds, which were to be surrounded by a high stone 
wall. 

(The gratitude of Girard's relatives for their respective 

214 



1843] GIRARD WILL CASE 

legacies did not equal their disappointment at not receiving 
more, and in 1836 they filed a bill in the United States 
Circuit Court to have the trust declared void, on the ground 
that the city could not hold a trust, and that the objects of 
the charity were too vague and indefinite to be capable of 
execution. Subsequently they also attacked the exclusion 
of ecclesiastics, urging that the college would become a means 
of propagating infidelity, and that in consequence the trust 
was contra bonos mores. The case came on for hearing at 
April Sessions, 1841, but the complainants' counsel made no 
argument, and the bill was dismissed and an appeal taken. 
This was first argued in the Supreme Court in 1843, by Mr. 
Stump, who was one of the complainants, and Mr. Walter 
Jones, of Washington, the city being represented by Mr. 
Sergeant. Three of the judges being absent (among them 
Judge Story, a recognized authority on equity), a reargu- 
ment before a fuller court was ordered for the next term. 
It was currently rumoured that the six judges who sat were 
equally divided, but the mere fact that a reargument had been 
ordered showed that neither side could count on an easy 
victory. Accordingly the complainants retained Daniel 
Webster, 3 whose eminence was scarcely less at the bar than 
in the Senate, and to meet this move the city turned to Mr. 
Binney. 

Up to this time the city authorities had apparently not 
contemplated the possibility of defeat, and having been in 
possession of the property for several years, they had gone 
ahead and spent a great deal of it in the erection of build- 
ings. 4 To be called upon to account to the heirs would have 



"Webster had recently resigned the Secretaryship of State. 

4 The corner-stone of the college had been laid on July 4, 1833, but the build- 
ings were not completed until November 23, 1847. The college was formally 
opened on January 1, 1848. 

215 



HORACE BINNEY [Mt.QS 

been a very serious matter. Hence when Mr. Thomas P. 
Cope, who was one of Girard's executors and a leading mem- 
ber of Councils, called on Mr. Binney to request his services 
at the reargument, he said that it was not an ordinary case, 
that it involved most deeply the interests of the whole city, 
and that Mr. Binney's friends were all agreed that he was 
not at liberty to refuse, as they thought the argument a duty 
which he owed to the city where he had passed his life and 
where he had always received the highest evidences of pro- 
fessional confidence and respect. 

Mr. Binney replied that he had retired from the courts 
seven years before, and was fully and agreeably occupied in 
giving professional opinions ; that he had repeatedly declined 
to attend court, and had not contemplated ever delivering 
another argument. However, on Mr. Cope's insistence, he 
finally agreed to consider the matter. 

On inquiry he learned that Mr. Sergeant's argument had 
been made in reliance mainly on Pennsylvania decisions, and 
that it was now thought necessary to investigate the funda- 
mental principles of charitable trusts, so as to put the case 
on the strongest possible ground. The reargument was to 
be in no sense a repetition of the former one. This, of course, 
made it possible for a new counsel to present his own argu- 
ment without interfering with the line taken by Mr. Ser- 
geant, but Mr. Binney was explicit from the start in making 
his acceptance conditional on Mr. Sergeant's remaining in 
the case if his health permitted. He was the more ex- 
plicit because he learned that an influential member of the 
Councils wished to exclude Mr. Sergeant from the argument, 
and to substitute Mr. William M. Meredith. " When Mr. 
Cope called again," wrote Mr. Binney, " I told him ... I 
would on no account, as an old friend, prevent or be the 
means of preventing Mr. Sergeant's arguing it again. If 

216 



1843] GIRARD WILL CASE 

my services were deemed of importance to the city, they 
must be sufficiently so to authorize me to annex this condition 
to them, on account of my personal relations with him, which 
I did not mean to put to so great a hazard as they would be 
by my consenting to take his place in the argument. ... So 
accordingly it was arranged and understood explicitly by Mr. 
Cope for the Councils, by Mr. Meredith, and by myself; and 
with this entendu I agreed to take part in the cause, and 
accepted the retainer of the city. 

" In the course of my preparation ... I conversed on 
some points more than once with Mr. Sergeant, about as much 
as was our practice in cases in our own courts, where he uni- 
formly left me to prepare the whole argument, if I was to 
open, as I generally did, he being three months my senior at 
the bar, and as I thought it indispensable to do in this case. 
I believe he left the matter to me with perfect confidence, 
and probably did not look much into it, if at all, himself." 

Although the court had not indicated any particular 
points as to which reargument was specially desired, it was 
not difficult to see what it was that had disposed some of the 
judges, at least, to favour the complainants' side. The name 
of Marshall, as it always will and always should, carried great 
weight with the court, and his opinion in Baptist Association 
vs. Hart's Executors, 5 delivered in 1819, as well as the con- 
curring opinion of Story, 6 undoubtedly gave colour to the 
contention that a trust like Girard's, for the benefit of poor 
white male orphans of a certain age, a class of persons no one 
of whom could assert a legal right to be a beneficiary, could 
not be upheld in the United States. That case decided that 
a devise to an unincorporated society, in trust " for the educa- 
tion of youths of the Baptist denomination, who shall appear 



4 Wheat, 1. 6 Printed in 3 Pet., 481. 

217 



HORACE BINNEY [^Et. 63 

promising for the ministry," with a preference for the de- 
scendants of a certain family, was invalid in Virginia; not 
merely because the society, being unincorporated, could not 
itself hold property, but also because the trust was too vague 
to be claimed by those for whom the beneficial interest was 
intended. 

In the Girard case, it is true, the trustee was a municipal 
corporation, but if Marshall's doctrine as to gifts for vague 
and uncertain objects was to be broadly applied, it would be 
fatal to the trust, and it had been so applied in Maryland and 
Virginia. It was therefore necessary to show conclusively 
that the decision in the Baptist Association case was founded 
upon an erroneous idea of the law of charitable trusts as it 
had existed in early days, before the statute of 43d Elizabeth, 
and accordingly Mr. Binney set himself to study the legal 
history of charitable trusts as it had never been studied before 
in this country, and possibly even in England. His researches 
disclosed the fact that charitable trusts for uncertain bene- 
ficiaries had been well known at common law and repeatedly 
upheld before the statute of Elizabeth, which had been 
enacted merely " to redress the misemployment of lands, 
goods, and stocks of money heretofore given to certain 
charitable uses," such misemployment having followed the 
dissolution of the religious orders, who had been the great 
trustees for charitable uses throughout the kingdom. 

It does not disparage the learning of Marshall and Story 
to say that in 1819, when they decided the Baptist Associa- 
tion case, they did not have that knowledge of the law of 
charitable trusts which Mr. Binney acquired in 1843. The 
duty of investigation is primarily that of the counsel and not 
of the court, but, besides, he had access to authorities some 
of which could probably not have been found in America in 
1819, while others were then not even in print. The " Cal- 
ais 



1843] GIRARD WILL CASE 

endars of the Proceedings in Chancery," covering the reign 
of Queen Elizabeth and several of her predecessors, were not 
published until 1827, and from these Mr. Binney gleaned 
more than fifty instances of an exercise of chancery juris- 
diction which Marshall had positively stated there was no 
trace of whatever. Moreover, the subject had been studied in 
England since 1819, and Mr. Binney was able to cite the con- 
clusions of eminent jurists there in confirmation of his own. 

Mr. Binney's copies of the volumes in which the opinions 
in the Baptist Association case are found contain some inter- 
esting traces of his work in preparing for the Girard argu- 
ment. His pencilled notes, written after he had completed 
his researches, point out again and again the erroneous views 
of Marshall and Story in regard to the law as it stood before 
the 43d Elizabeth. It is clear, too, that he thought Mar- 
shall's view much too narrow, even after making all due 
allowance for the conditions under which the opinion was 
written, for the final note is this: " The great defect of this 
case is that the mind of the chief justice is not applied to the 
subject upon grounds and principles of general equity, but 
it is a search after the fact whether chancery, before 43d 
Elizabeth, can be shown to have exercised the power of en- 
forcing trusts for charities that could not be directly enforced 
at law. This was altogether an unworthy research for such 
a man." J 

In December Mr. Justice Thompson died. It was gen- 
erally understood that he had been in favour of upholding the 
trust. At all events his death made it possible that the court 
might divide evenly on the reargument, and while this would 
have sustained the will, it would not have settled the prin- 
ciple for which Mr. Binney was contending. If he had 
needed any further stimulus to strive for a victory of the most 
decisive character, the bare possibility of a divided court may 

219 



HORACE BINNEY [&t. 64 

well have furnished it. As it turned out, however, Chief 
Justice Taney was too unwell to sit, and the case was ulti- 
mately heard by seven judges only, Mr. Justice Story pre- 
siding. 

Mr. Binney reached Washington on January 10, 1844, 
but returned after a few days, as Judge Story's absence de- 
layed the argument. Again on the 26th there was further 
delay, and the hearing did not begin until a week later. 
While confident in the strength of his argument, Mr. Bin- 
ney lost no chance of further perfecting it if possible, and 
during the enforced delay he wrote more than once to his 
son to procure authorities to which he had not yet had access. 
Still, though striving to turn the delay to some advantage, 
he found it irksome enough, and the very cold weather did 
not tend to improve matters. On the 27th he wrote: " My 
cold continues and is to wear off with a cough. I want my 
voice as much as old Jenkins said he did when he expected 
to speak at his hanging." 

On February 2 Mr. Jones opened, taking substantially 
the same view of a charitable trust that had been taken in 
the Baptist Association case, and attacking also this par- 
ticular trust on account of the exclusion clause. On the 5th 
Mr. Binney proceeded to lay before the court the fruits of 
his exhaustive study of the case. He first showed that Girard 
had been far from illiberal to his relatives, and that, in con- 
sequence of the residuary clauses of the will, they could gain 
nothing by a judgment adverse to the trust. " The com- 
plainants' whole argument against the charity is," he said, 
" suicidal. The only effect of it, beyond their own destruc- 
tion, is to give [the property] to the city, for her appropriate 
municipal uses, and to defeat, without the slightest benefit to 
themselves, the noble charity that their kinsman has instituted 
for the poor." 

220 



1844] GIRARD WILL CASE 

Turning to a consideration of the trust itself, Mr. Bin- 
ney called attention to the fact that the attack upon Girard's 
will was an attack upon all charitable trusts in the United 
States. He said, — 

This great question, involving the largest pecuniary amount 
that has perhaps ever depended upon a single judicial decision, and 
affecting some of the most widely diffused and precious interests, 
religious, literary, and charitable, of all our communities, is now to 
be brought to the test of legal researches and reasoning. ... If we 
look to [the complainants' bill] for such discriminations between 
charitable uses as will leave the public in the enjoyment of some and 
deprive them only of others, we find nothing of the kind. It would 
have been some relief to ascertain, if those in the testator's will were 
thought to be defective, that by adding or subtracting some par- 
ticular characteristics, we might, with the complainants' consent, fall 
upon at least one class of charities that has enough of suspended 
animation to be resuscitated by a court of equity. But the complain- 
ants leave no such hope or expectation to the public. They give us 
no principle or rule by which we can discover that in their judgment 
there are any redeeming characteristics of a good charitable use. 
They allege as fatal defects in the uses declared by Mr. Girard prop- 
erties that are not only common to all charities, but are inseparable 
from their very nature. They treat the whole institution of charities 
as an irremissible offence against the laws of property, whether legal 
or equitable, except so far, and only so far, as the Legislature may 
have made a special enactment for the case. 

To meet an attack of so fundamental a character, an 
almost elementary investigation of this branch of the law 
was needed. In answering the objection that the Girard 
trust was void because the beneficiaries were not certain, Mr. 
Binney was not content with showing that a trust for the 
support and education of poor white male orphans of a cer- 
tain age was neither vague nor indefinite, but he went on to 

221 



HORACE BINNEY [JEt. 64 

completely turn the tables upon his antagonists, proving con- 
clusively that uncertainty as to the beneficiaries, so far from 
detracting from a charitable trust, was an essential feature 
of it. In developing this part of his argument he first called 
attention to a number of instances of charitable trusts for 
uncertain objects, and of the vesting of interests in the 
beneficiaries, and went on to say, — 

The argument of the complainants demands for all charities 
that certainty and definiteness which are the badges of private right; 
and it probably will not be surrendered until, by rising up to the 
source of charity, it is shown that certainty in their sense is its bane, 
that uncertainty, in the sense of the law of charities, is its daily bread, 
and that the greatest of all solecisms in law, morals, or religion is to 
talk of charity to individuals personally known to and selected by 
the giver. There is not, there never was, and there never can be 
such a thing as charity to the known, except as " unknown." Uncer- 
tainty of person, until appointment or selection, is, in the case of a 
charitable trust for distribution, a never-failing attendant. 

He then proceeded to rise " up to the source of charity," 
saying- 
It has been said that the law of England derived the doctrine 
of charitable uses from the Roman civil law. ... It is by no means 
clear. It may very well be doubted. It is not worth the time neces- 
sary for the investigation. . . . But where did the Roman law get 
them? . . . They come from that religion to which Constantine was 
converted, which Valentinian persecuted, and which Justinian more 
completely established; and from the same religion they would have 
come to England, and to these States, though the Pandects had still 
slumbered at Amalfi, or Rome had remained forever trodden down by 
the barbarians of Scythia and Germany. I say the legal doctrine 
of pious uses comes from the Bible. I do not say that the principle 
and duty of charity are not derived from natural religion also. Indi- 



1844] GIRARD WILL CASE 

viduals may have taken it from this source. The law has taken it in 
all cases from the revealed will of God. 

What is a charitable or pious gift, according to that religion? 
It is whatever is given for the love of God, or for the love of your 
neighbour, in the catholic and universal sense, — given for these 
motives, and to these ends, — free from the stain or taint of every 
consideration that is personal, private, or selfish. 

Viewed as a definition, this statement has been criticised 
as more religious than practical. It is, however, a description 
of a charitable gift " according to the Christian religion," 
from the stand-point of " the source of charity," — a descrip- 
tion, in other words, of the ideal charitable gift, rather than 
a definition to which all gifts which are to be upheld as 
charitable must conform. The complainants had contended 
that the law would not uphold a trust in favour of indefi- 
nite, unknown persons, and Mr. Binney was undertaking 
to show that the most perfect charitable gift was that where 
the beneficiaries were least known to the benefactor. It is 
a mistake to suppose that this description of the ideal chari- 
table gift was intended as a definition. It relates to motives 
and considerations which may be inferred, but can never be 
proved to exist. All that can be said of any gift is that 
the more nearly it approaches this ideal, the more truly a 
charity it is. 

The argument continued with a discussion of charity 
from the religious stand-point, a discussion thoroughly 
spiritual in its tone. Realizing that some explanation might 
be needed for thus trenching on what might be thought the 
province of the preacher rather than the lawyer, he said, — 

It has been by no means my intention in these remarks to pro- 
nounce a homily to the court or to the counsel. It is not without some 
repugnance that I have blended themes of this nature with questions 

223 



HORACE BINNEY [JEt. 64 

of law, in a strife for the recovery and defence of property. But 
they bear directly upon questions of law, and especially upon the 
great question which I am now to discuss ; for they disclose the 
foundation of charitable uses and one of their inseparable attributes, 
in a manner most effectual to answer not only the main argument 
of the complainants' counsel, but the judicial arguments which, in one 
or two cases in our own country, have unfortunately been used to 
defeat them. 

After disposing of the legal objections which had been 
urged against the trust, Mr. Binney proceeded to establish 
its validity, demonstrating, by reference to group after 
group of unassailable authorities, the successive propositions 
that the trust was good by the common law of England, 
which was the common law of Pennsylvania; that the city, 
being in complete possession, was not seeking the aid of a 
court of equity; that the trust was, however, entitled to the 
protection of such a court upon general principles of equity 
jurisdiction; that such trusts always had been protected in 
Chancery by its original jurisdiction; that the statute of 43d 
Elizabeth only supplied an ancillary remedy, long since dis- 
used; and that the great body of the equity code of England 
had been adopted in Pennsylvania from the first, as well as 
in several other States. In short, he placed the Girard trust 
upon absolutely impregnable ground. 

In the discussion of his first proposition Mr. Binney took 
up the objection that Girard had sought to found an anti- 
Christian charity. He pointed out that there was no prohi- 
bition of religious teaching, but only an exclusion of eccle- 
siastics, and that expressly because of the multiplicity of 
sects, the will disclaiming most positively all intention to cast 
any reflection upon any sect whatever; while, on the other 
hand, the provision for instruction in " the purest principles 
of morality," and the references to " the sacred rights of 

224 



1844] GIRARD WILL CASE 

conscience," and to the adoption of " religious tenets" by the 
scholars on leaving the college, showed that Girard contem- 
plated that the scholars should be qualified by Christian 
teaching in the college, to become, after leaving its walls, 
intelligent and conscientious members of Christian bodies. 
He said, — 

I 
Whoever reads this will by its own light only, and this is all that 
the court have to guide them, must therefore see that there is nothing 
in it like an interdiction of instruction in the principles of the Chris- 
tian religion ; and I contend for this the more strenuously because the 
trust, I confidently believe, must be executed, and I should deprecate 
it as a great public evil, as well as a perversion of the will, to have a 
doubt remain of either the right or the duty of the trustees to give 
religious instruction. 

In this connection Mr. Binney went on to state that there 
was no law requiring Christianity to be taught in schools 
by Christian ministers, that a great deal of religious in- 
struction was given by laymen, as in the case of Sunday- 
schools, and that there was nothing in the will to prevent the 
erection of an infirmary outside the walls for the use of the 
scholars in time of illness, to which building, if so placed, 
the exclusion would not apply. He added the pertinent 
suggestion : 

If this exclusion or restriction in the testator's will is illegal, 
it is for that reason null and absolutely void, and the consequence is 
not that the charity fails, but that the restraint — the condition — is 
defeated, and the court must establish the charity according to their 
sense of the law. It is a condition subsequent to the gift. The estate 
has vested in the trustees, and this restraint or condition is a restraint 
upon its use. If the restraint is illegal, the use is not bound by it. 
The complainants gain nothing by the objection but the unenviable 

15 225 



HORACE BINNEY [iET. 64 

satisfaction of holding up their benefactor to judicial censure, and 
possibly to more general reprehension. 7 

Mr. Sergeant followed with a general review of the 
grounds of defence presented by Mr. Binney, and Webster 
then replied in a three days' speech, directed mainly against 
the exclusion of the clergy from the college. He contended 
that the trust was designed to foster atheistic, or what would 
now be called agnostic, education, and hence was not really 
a charity at all in any view that a court of equity would up- 
hold. This part of his argument was thought so strong a 
plea for the necessity of a religious education that it was 
afterwards published as a pamphlet, 8 on the request of a 
number of clergymen and others ; but as the exclusion clause 
was, as Mr. Binney had pointed out, in no sense essential to 
the maintenance of the trust, the argument was, for the pur- 
pose for which Webster was retained, less pertinent than 
ingenious. The impression which it made on Judge Story 
was as being " altogether an address to the prejudices of the 
clergy." 9 Though Webster's views as to the anti-Christian 
purpose and effect of Girard's trust were opposed at every 
point to Mr. Binney's, he paid high tribute to the latter's 
argument, saying, — 

I never, in the course of my whole life, listened to anything 
with more sincere delight than to the remarks of my learned friend 
who opened this cause, 10 on the nature and character of true charity. 
I agree with every word he said on that subject. I almost envy him 
his power of expressing so happily what his mind conceives so clearly 

7 It may perhaps be thought unfortunate that the court did not find it 
necessary to settle the question in the way suggested, and, by holding the exclusion 
clause to be void, allow the clergy access to the college. 

8 It is published in Webster's Works, vol. vi. p. 133. 
8 Story's Life and Letters, vol. ii. p. 469. 

10 The words, " for the defence," should have been added. 

226 



1844] GIRARD WILL CASE 

and correctly. He is right when he speaks of it as an emanation 
from the Christian religion. He is right when he says that it has 
its origin in the word of God. He is right when he says that it was 
unknown throughout all the world till the first dawn of Christianity. 
He is right, pre-eminently right, in all this, as he was pre-eminently 
happy in his power of clothing his thoughts and feelings in appro- 
priate forms of speech. 

It is needless to say, however, that Webster cleverly 
turned this tribute to Mr. Binney into an argument against 
the latter's view of the practical effect of the exclusion clause. 

Judge Story, writing to his wife at the close of Web- 
ster's first day, gives an interesting partial glimpse of his 
own impression at the time. 

In the case of the Girard will, the arguments have been con- 
tested with increasing public interest, and Mr. Sergeant and Mr. 
Binney concluded their arguments yesterday. A vast concourse of 
ladies and gentlemen attended with unabated zeal and earnest curi- 
osity through their speeches, which occupied four days. Mr. Web- 
ster began his reply to them to-day, and the court-room was crowded 
almost to suffocation with ladies and gentlemen to hear him. Even 
the space behind the judges, close home to their chairs, presented 
a dense mass of listeners. He will conclude on Monday. The curious 
part of the case is that the whole discussion has assumed a semi- 
theological character. ... I was not a little amused with the manner 
in which on each side the language of the Scriptures and the doctrines 
of Christianity were brought in to point the argument; and to find 
the court engaged in hearing homilies of the faith and expositions 
of Christianity with almost the formality of lectures from the pulpit. 11 

/ The argument ended on February 13, and a fortnight 
later Judge Story delivered the opinion. Though he had 
written a concurring opinion in the Baptist Association case, 



Story's Life and Letters, vol. ii. p. 467. 



HORACE BINNEY \_Mt. 64 

his mind was thoroughly open to any new light that might 
be shed upon the subject. In fact he called Mr. Binney's 
attention to a recent decision of Lord Chancellor Sugden, 12 
which he had not seen, and which he admitted would have 
aided his preparation of the case if he had known of it before, 
as it had involved to some extent the same line of research. 

Judge Story distinguished the case from that of the Bap- 
tist Association, and admitted that the court had more infor- 
mation on the history of charitable uses than it had had in 
1819, His opinion is clear and concise, and wholly along the 
lines of Mr. Binney's argument. A letter of Story's to 
Chancellor Kent, written six months later, says, " I rejoice to 
know your opinion on the Girard case. The court were 
unanimous, and not a single sentence was altered by my 
brothers as I originally drew it. I confess that I never 
doubted on the point, but it is a great comfort to have your 
judgment — free, independent, learned — on it." p 

Before the Girard will argument Mr. Binney's standing 
as a lawyer was certainly second to none in Pennsylvania, and 
a New York newspaper writer had referred to him in 1841 
as " second to no man in the United States." Still, though 
known outside of his own State, both as a lawyer and by his 
short career in Congress, it could hardly be said that he was 
a man of great national reputation. He had made seven 
other arguments before the Supreme Court, losing only one 
of them, but none of these approached the Girard case, either 
in the amount involved or in fundamental legal importance. 
It may well be that Mr. Sergeant's original argument was 
really sufficient to win the case as far as upholding this par- 



12 Incorporated Society vs. Richards, 1 Dru. and War., 258. There was a 
copy in the Harvard Law Library, but none in Philadelphia or Washington, 
apparently. 

13 Story's Life and Letters, vol. ii. p. 467. 

228 



1844] GIRARD WILL CASE 

ticular trust was concerned, but it was universally recognized 
that the establishment of charitable trusts in general upon an 
unassailable legal basis in the United States was Mr. Binney's 
work, both in the research which preceded the argument and 
in the argument itself, which was practically an epitome of 
the whole law upon this subject. Without making any in- 
vidious distinctions it is not too much to say that from this 
time on he was regarded, throughout the whole country, as 
one of the very foremost of all American lawyers. By 
many he was even thought to be the head of the whole bar 
in the United States, 14 but he always laughed at such a sug- 
gestion himself. This, however, is certain, that as long as 
the law of charitable trusts shall exist as a part of Ameri- 
can jurisprudence, his name will be inseparably connected 
with it. 

Two incidents connected with this argument remain to 
be noticed. There was, as already mentioned, a vacancy on 
the Supreme Bench at this time, and Mr. Henry A. Wise 
has stated, in his " Seven Decades of the Union," that the 
appointment was oiFered to Mr. Sergeant, and on his de- 
clining, the same offer was made to Mr. Binney, on Mr. 
Sergeant's suggestion. As to the interview with Mr. Ser- 
geant, Mr. Wise's book is the only authority, but Mr. Binney 
has recorded what took place as regards himself, in an 
account written more than twenty years before that of Mr. 
Wise, and therefore presumably, more accurate. 



14 In a pamphlet on " Personal Liberty and Martial Law," published in April, 
1862, strenuously attacking Mr. Binney's view of the suspension of the privilege 
of habeas corpus, the late Mr. Edward Ingersoll, with characteristic courtesy, 
quoted Earl Russell as having publicly referred to Mr. Binney as " the head of 
the bar in America," and endorsed the statement as true. Presumably Mr. Inger- 
soll copied an incorrect newspaper despatch, for Earl Russell's words in the 
House of Lords, as officially reported, were, " a gentleman at the head of the bar 
in Philadelphia." (See Hansard, 3d ser., vol. clxiv. p. 106.) 

229 



HORACE BINNEY [Mt. 64 

" After I had finished my argument, which kept me on 
my feet, I am sorry to say, nearly three mornings, a per- 
sonal friend of President Tyler, holding a public station, and 
who afterwards received a high appointment from him, 
visited me at my chamber at Gadsby's. . . . 

" After referring to my argument, which this gentle- 
man spoke of in terms it does not become me to repeat, he 
was so obliging as to say that he with many others desired 
to see me on the bench of that court, and he expressed in 
urgent terms a desire that I would permit him to mention 
my name to Mr. Tyler for the appointment. His intimacy 
with Mr. Tyler was quite sufficient to justify the inference 
that he had already spoken of it to the President ; but he did 
not say so, and I have no reason for inferring it but this 
intimacy, the absence of intimacy with myself, and the prob- 
ability that he would not have asked my consent without 
having some reason to think that he would not bring me a 
disappointment by obtaining it. 

" Without in any way adverting to its being the New 
York circuit that was vacant, and therefore that the bar of 
that State would naturally and most justly look for a gentle- 
man of their own State, I distinctly but respectfully declined 
the proposal. I told him, moreover, that I had now attained 
the age of sixty-four; that I knew what I had done at the 
bar, but did not know what I could do on the bench ; that I 
had no time to learn a good judicial habit and manner, if it 
should be found that I wanted them at the outset; and that 
there were other circumstances in my case and in that of the 
court which it was unnecessary to mention, but that upon full 
consideration I had determined not to accept any judicial 
station whatever. 

" Whether the gentleman repeated this to the President 
I do not know, but upon Judge Baldwin's death, a few 

230 



1844] GIRARD WILL CASE 

months afterwards, the commission was not offered to me; 
and if it had been, I should certainly have refused it." 

Mr. Wise's book shows that he was the " personal friend 
of President Tyler" who visited Mr. Binney, but he did not 
write until after 1868, and his reference to the argument 
contains several inaccuracies. 15 Of the interviews he wrote: 

The evening after Mr. Binney had concluded this great argu- 
ment, in January (sic), 1844, Mr. Sergeant was visited by us 16 at 
his hotel to deliver the message of Mr. Tyler. Mr. Binney was in 
the next room. Mr. Sergeant received the compliment with gracious- 
ness and evident pleasure; but he did not hesitate to decline the 
tender of a place on the Supreme Bench. Before he assigned his 
reason he enjoined secrecy during his life, and especially it was not 
to be disclosed to Mr. Binney. It was that he was past sixty years 
of age, and that he ought not to accept, but he regarded Mr. Binney 
as being much more robust than himself, considered that Mr. Binney 
might accept, and did not wish him to know that he had declined 
because he considered himself too old, and requested that the Presi- 
dent would make the tender of the place to him. It was tendered to 
Mr. Binney at once, and, behold, he declined it for the same reason, 
but begged that Mr. Sergeant should not be informed of his reason, 
and that the place might be tendered to him. 

Neither, we believe, ever knew the reason of the other for 
declining. 

Mr. Binney said that he had once, in the vigour of his manhood, 
aspired to judicial position, — to a seat on the Supreme Bench of 
Pennsylvania; but Mr. Justice Gibson, of that State, had been pre- 
ferred to him, and that cured his ambition, and he had never since 
aspired to the bench. 17 

1B E.g., that Judge Baldwin's seat was vacant, whereas it was Judge Thomp- 
son's; that Mr. Binney had gone to England to confer with Lord Campbell and 
secure unpublished Chancery records in regard to charities; and that Mr. Ser- 
geant's argument preceded Mr. Binney's. 

16 Mr. Wise always used the editorial " we." 

17 Seven Decades of the Union, p. 219. 

231 



HORACE BINNEY [JEt. 64 

The similarity between the two replies to the offer can 
scarcely have been quite as complete as Mr. Wise states. Mr. 
Binney does not say that he suggested Mr. Sergeant's name, 
and the fact that he thought the appointment should be from 
New York makes it unlikely that he did so. That he should 
have confessed to having once " aspired to judicial position," 
and to having had his " ambition" cured by disappointment, 
is even more unlikely. Mr. Binney's aspirations and ambi- 
tions, unlike Mr. Wise's, were not towards public life of any 
kind. The most that he was likely to have said was that if 
he had ever aspired to judicial position, the fact that the 
request of the bar in his behalf, in 1827, had been denied 
would have sufficed to cure such an ambition. What is more 
likely, however, because it would have been characteristic of 
both men, is that Mr. Binney merely stated the occurrences 
of 1827 without comment, and that Mr. Wise inferred that 
there must have been both aspiration and disappointment. 

Among those who listened to Mr. Binney's argument 
was General Zachary Taylor, afterwards President. What 
he thought of it appears from a letter of Mr. Binney's 
written in 1873 to a friend who had been reading the argu- 
ment. 

The argument on my part is truly presented, but I have been 
often told it was better delivered. It may be so, or not so. Upon the 
strength of having heard it, I really believe that General Taylor 
wished to make me his Secretary of State, as I was informed semi- 
officially, which I think was the most foolish thing I ever heard of 
him, unless perhaps it was his excess in eating cherries and ice-cream, 
which killed him. But he was a very honest man, though perhaps 
no better judge of civilians than General Grant is said to be. 

Under ordinary circumstances the thanks of the City 
Councils would have been formally given to its successful 

232 



1844] GIRARD WILL CASE 

defenders, but the same influence which had sought to ex- 
clude Mr. Sergeant from the case prevented any expression 
of thanks to him, and no distinction could be made. The 
trustees of the Girard Estate gave their thanks, however, and 
had the argument printed in full for permanent preserva- 
tion. The following letter states one of the motives for the 
printing: 

(To the Hon. D. A. White.) 

Burlington, Aug. 26, 1844. 

I was very happy to see your handwriting once more, and to 
read your kind letter. The argument was not printed for use in 
your quarter, because your State courts are, and always have been, 
right on this head, and so I am certain Judge Story would have been 
but for a little too much deference to Chief Justice Marshall, a great 
constitutional lawyer and a truly great man, but not equal in all 
branches of the law. 18 The " barbarous people" in Virginia shew no 
kindness to charities, especially religious charities, and Maryland has 
the same temper in her courts, though her people have a much better 
one. The hope of the friends who suggested the printing was to do 
some good in those quarters, and in the South generally, where it has 
not yet been sufficiently considered how much the virtue and dignity 
of a State depend on protecting chanties for religion and letters, as 
well as those for the relief of the poor and sick. I hope they will all 
come to think more and better of the matter. If I have the suffrages 
of the ladies, it is a great deal more than I looked for. A female 
friend, who does me the favour to read anything she sees my name 
to, told me, after trying a few pages, that she found I could write 
as unintelligibly as other people, when it suited my purpose. 

I had half a mind, when I saw that you were to discourse to the 
alumni, to start right off with the wind and catch a part; but you 
must know that swiftly and happily as I may travel to the borders 
of Massachusetts, yet as soon as I get within, and near my old haunts, 
the breeze all dies away, and my sails flap languidly against the 



18 This refers, of course, to Story's opinion in the Baptist Association case. 

233 



HORACE BINNEY [JEt. 64 

masts, or hang motionless and dead. Nearly all that I once knew 
and loved there are gone ; and when an exception shews itself in you 
or Warren and perhaps a few others, it only compels me the more to 
mark the extent of the vacuity. This is one of the discomforts of 
revisiting the scenes of our youth in old age, and a very sharp one 
to me, as I have repeatedly found. The old familiar faces are gone, 
and there has been no opportunity to acquire an interest in those 
which have taken their place. Your discourse will be printed, however, 
and I shall be refreshed by the light of your countenance, without 
feeling so keenly that my other lights in your neighbourhood have 
gone out. I count upon your sending me a copy. 



234 



1844] ANTI-CATHOLIC RIOTS 



X 

ANTI-CATHOLIC RIOTS— PENNSYLVANIA RAILROAD 

CONTROVERSY 

1844-1849 

DURING 1844 occurred the worst riots that Phila- 
delphia has ever known. The Native American 
party had just started on its brief career, and on 
May 3 an open-air meeting for local organization was held 
in the Kensington district. The foreign-born element, mostly 
Irish, broke up the meeting, and attacked it again when re- 
convened three days later. Some shots were fired from 
houses, a youth named Shiffler was killed, and several men 
wounded. In revenge an attack was made on a Roman 
Catholic school known as " the nunnery," but this was aban- 
doned after two men had been killed by shots from the build- 
ing. The next afternoon, May 7, the Native Americans met 
in the State-House yard, adopted denunciatory resolutions, 
and marched to Kensington to hoist a flag where Shiffler had 
fallen. Being fired on from the Hibernia Hose-House, they 
broke into and burned the building, and did nothing to check 
the spread of the flames. During the conflagration some of 
the crowd were killed and others wounded by shots from 
houses. Finally the militia restored some degree of order, 
and the fire was put out, but only after about thirty houses 
had been burned. Most of the troops were withdrawn the 
next day, whereupon more fires broke out, destroying " the 
nunnery" and St. Michael's Church and adjoining buildings. 
The return of the troops ended the riot in that particular 

235 



HORACE BINNEY [JEt. 64 

district, but disturbances broke out in the city itself. While 
the mayor and police were trying to pacify a mob in front 
of St. Augustine's Church, on Fourth Street below Vine 
Street, it was entered, and totally destroyed by fire. Strong 
guards of troops saved the other Roman Catholic churches, 
the United States marines being posted at St. Mary's, a few 
doors from Mr. Binney's house. 

At that time the police force was small and inefficiently 
organized, the city and the districts having each its separate 
force; while as there was no riot act the local authorities 
shrank from any effective use of troops, and, in fact, showed 
no capacity to deal properly with the situation. Mr. Binney, 
however, presumed that the riot would be speedily suppressed, 
and although from his door-steps he watched the flames at 
St. Augustine's, not half a mile away, and his own house was 
just between two other Roman Catholic churches, he saw no 
reason for excitement or fear. Great was his surprise, there- 
fore, the next morning, to learn that nothing had been done. 

" Upon descending from my early breakfast," he wrote, 
" I found Peter McCall in my office, who told me that I was 
desired to come to the Council chamber as soon as possible; 
and upon my inquiring the reason, he informed me that the 
city was in great disorder and agitation from the events of 
last night, and that I was wanted to advise upon the proper 
measures for the occasion. I replied to him that I would not 
go, that the men in authority were the men to take the re- 
sponsibility of the proper measures, and I presumed that they 
had already done it. There were enough of them, and as they 
held office it was to be hoped they were fit for it. To this he i 
rejoined that I must go, that he had been deputed specially 
to bring me up, and that nothing had been done ; on the con- | 
trary, that the authorities had been in session during the night, 
and instead of doing anything, appeared to be stupefied. 

236 



1844] ANTI-CATHOLIC RIOTS 

He then gave me the details of the night as he had learned 
them. The mob had triumphed. The military had been 
ordered to retire to a neighbouring street to wait for orders, 
and instead of being called upon to disperse the mob, which 
they could easily have done, . . . they remained in shame 
and indignation within two hundred feet, while the civil au- 
thorities, from mere apprehension of taking life, had refused 
to call on them, but stood quietly by to see the church burn 
down and the mob depart with cheers and menaces of further 
destruction. . . . Mr. McCall told me that everything de- 
pended upon my coming, and that he would not return with- 
out me. I asked him to request Mr. Sergeant to be present 
in the Council chamber, and said I would follow without 
delay. 

" I shall never forget the appearance of the Council 
chamber when I entered it. There were perhaps five and 
twenty in the chamber. Mr. Meredith, the president of the 
Select Council, was there, the Attorney-General, Mr. Josiah 
Randall, and some others. I never saw a body of more 
unresolved men. One or two of them had countenances a 
little below this. They looked as if they were excessively 
puzzled. I believe there was no formal organization of the 
meeting, but I started some irregular talk by asking whether 
any person had anything to suggest or to say in regard to 
the occasion of the meeting. The Attorney-General and one 
or two others said a word or two, which looked to getting 
assistance elsewhere, and to the responsibility of meeting the 
violence of the mob in the only way effectually. I replied 
that assistance from other quarters might be very useful, but 
that if we did not mean to be unworthy of it we must assist 
ourselves immediately ; and that as to the responsibility of re- 
sisting a mob in the very degree, however severe and extreme, 
which their designs and violence made necessary, I had as 

237 



HORACE BIXXEY [JEt. 64 

little hesitation about encountering it as I had [doubt] of the 
ability of the citizens with their own hands to make the re- 
sistance effectual. It was immediately moved by some one 
to appoint a committee to prepare resolutions to be submitted 
to a town meeting, which I then for the first time heard was 
to meet in the State-House [yard] at ten o'clock, it being 
now about half -after nine. The committee was appointed, 
myself as chairman, and we immediately retired to a com- 
mittee room, two or three of my friends, as I passed along, 
saying that the meeting would agree to anything I would 
propose. The resolutions which I drew up were short and 
plain; they did not ask for any help but from ourselves; 
they recommended the immediate enrolling of the citizens 
in each ward under the command of the civil authority of 
the ward; and they asserted the legal right, for the protec- 
tion of property and life, to resist and to defeat the mob by 
the use of any degree of force that was necessary for this 
purpose. 

" The resolutions were adopted at once, nem. con., with- 
out a word of discussion or remark, and I was appointed to 
present them to the public meeting. The assemblage in the 
Square was large, but extremely quiet, and I spoke ten min- 
utes. The resolutions were read and adopted with hearty 
cheers, and in a moment the whole expression of the meeting 
was changed. All looked as if the right tiling had been 
suggested at the right time, and all departed to put the 
measure at once into execution in the wards. Before the 
evening of the day arrived the city was safe, at least for that 
time. The comprehensive declarations of the resolutions, 
which did not speak daggers nor guns, but very plainly looked 
them, led to companies in military uniform, under military 
command; but in the first instance the young men, in their 
citizens' dress, became an effective police, guarded the ave- 

23S 



1844] AXTI-CATHOLIC RIOTS 

nues to the Catholic churches, and had the military at their 
backs to support them in case of need. 1 

The Fourth of July was followed by riots in the district 
of Southwark. The local authorities having found a few 
muskets in the church of St. Philip Xeri, a mob threatened 
the building and finally broke into it, besides maltreating the 
members of an Irish military company, who had been sent to 
defend it. On the evening of July 6 there was a lively 
skirmish between the troops and the mob, who had some 
muskets and two 4-pounder cannon. Men were killed and 
wounded on both sides, but the mob was ultimately driven 
back and the cannon captured. 

The next day the sheriff put a civil posse in charge of 
the church, and the troops were withdrawn. The fighting 
was not renewed, but a very dangerous feeling of sympathy 
for the rioters who had suffered, and of condemnation of the 
troops, began to show itself, so that even the arrival of the 
governor, and of troops from other counties, as well as the 
promise of regulars, did not suffice to assure the maintenance 
of order. It was evident that there must be some demonstra- 
tion of public opinion on the side of the authorities, or the 
mob might eventually triumph. On the morning of the 10th 



1 " The Hon. Horace Binney came forward and proposed a series of resolu- 
tions, which are subjoined, with some remarks calculated to throw light upon the 
duty of executive officers and the rights of citizens. 

"Mr. Binney deplored the wretched state into which the city and districts 
had been thrown, and explained the law which has a bearing upon the duty of 
those who are conservers of the public peace, — the gist of which is, that in attempt- 
ing to preserve or restore the public peace, the proper officer has a right, and is, 
therefore, bound to use force proportionate to the force of the disorganizer. In 
other words, Mr. Binney gave the idea, in which others concurred, that a mob 
ought to be put down, and the lives and property of citizens made secure to them; 
and, consequently, those who before had doubts about the right of the civil author- 
ity to use proportionate and efficient means to preserve order, became satisfied." 
(United States Gazette, May 10, 1844.) 

239 



HORACE BINNEY [^Et. 64 

there was a meeting at Evans's Hotel, 2 when it was agreed 
that the citizens should express to the governor their full and 
decided approval of the conduct of the military. The com- 
mittee in charge of the proposed address turned instinctively 
to Mr. Binney, who drew it up at once, so as to have it imme- 
diately printed and circulated for signature. The follow- 
ing passages illustrate the general tone of the paper: 

They [the military] are all of them citizens, performing the 
highest duty that a citizen can be called upon to perform, — the duty 
of perilling their lives in defence of the laws and the Constitution, 
which they have voluntarily adopted for their government. ... In 
the performance of this duty, which was no more their duty than 
ours, and in the performance of which they were citizens and only 
citizens, using the lawful force which unlawful force made necessary, 
their blood has been shed and the lives of some of them laid down 
upon the spot which by the command of the civil authority it was 
their duty to defend. . . . 

In offering this individual testimony to the civil officers and 
uniformed corps of the State, the county, and the city, we declare 
to your Excellency that we have no other object upon earth than 
to give confidence to public and private virtue in a crisis which de- 
mands them both in the highest degree; and to declare our ac- 
knowledgment of the great truth upon which all government, and 
republican government especially, rests, that obedience, implicit, un- 
hesitating, and unquestioning obedience is due to the law, while it is 
the law, and that the life and property of every citizen should be 
freely offered in its support. If any one has done wrong on the side 
of the law, let peace and order be restored and the law will judge 
her servants as impartially as she will judge her enemies. In the 
mean time ... let confidence be given to the servants of the law 
until its enemies are suppressed. 



2 The report of this meeting shows that Mr. Binney's oldest son was one of 
those most concerned in it. 

240 



1844] ANTI-CATHOLIC RIOTS 

The address, having been signed by a large number of 
citizens, was presented to the governor the next day at Inde- 
pendence Hall, and produced an excellent effect. It defi- 
nitely arrayed all respectable people on the side of order, 
and no further rioting was attempted. 

The fundamental difficulty of the authorities in dealing 
with the mobs was due to the lack of any statute definitely 
authorizing the use of whatever degree of force the circum- 
stances required. Very resolute men would not have hesi- 
tated to use such force at once, on general legal principles, 
but such men were not in office in Philadelphia in 1844, and 
are rarely in public office at any time. To guard against 
lawless outbreaks in the future, some legislation was clearly 
required; but opinion was divided as to whether it should 
be limited to police matters and the prompt suppression of 
riots, or should involve a complete reorganization of the 
municipal governments in Philadelphia County. The advo- 
cates of consolidation prepared a bill and memorial for sub- 
mission to the Legislature; while at an anti-consolidation 
meeting, held on December 28, 1844, Mr. Binney was ap- 
pointed on a committee to prepare a bill relating to the police 
and the maintenance of order. Not unnaturally, the actual 
drafting of the bill was left to him, and it ultimately became 
law as the Act of April 12, 1845. 3 Those parts of the statute 
which related to the police were superseded when consolida- 
tion was finally effected, nine years later, but the sections in 
regard to riots are substantially the same to-day as when Mr. 
Binney drew them. While they provide unequivocally for 
all measures essential to the preservation of the peace, they 
are, and were intended by their author to be, a means of pre- 
serving life, even the life of rioters, rather than of taking it 



' P. L., 380. 
16 ;241 



HORACE BINNEY [JEt. 64 

away. It is significant that since their enactment nothing 
that can properly be called a riot has ever occurred in Phila- 
delphia. 

During the session of the General Convention of the 
Episcopal Church in the autumn of 1844, Bishop H. U. On- 
derdonk, of Pennsylvania, communicated to the House of 
Bishops his wish to resign the jurisdiction of the diocese, and 
also submitted himself to the judgment of the House upon 
a written acknowledgment of excessive use of liquor. He 
had acquired the habit through resorting to stimulants to 
enable him to perform his very laborious duties, but while 
he had stopped their use altogether as soon as he realized the 
deleterious effects, this was not until his conduct had become 
the subject of censure, based somewhat on exaggerated re- 
ports. Mr. Binney had always esteemed the bishop very 
highly, and held that he had been imprudent, but perfectly 
blameless in intention, and that, having resolved to give no 
cause for scandal in the future, he should be dealt with in a 
Christian and forbearing spirit, so as to encourage the fulfil- 
ment of his resolution. Unfortunately many of the clergy 
of the diocese took a different view, and the bishop was sub- 
jected to a very extraordinary and bitter persecution, while 
the House of Bishops not merely accepted the resignation 
of jurisdiction, but imposed the crushing sentence of indefi- 
nite suspension from all episcopal functions whatever, and 
from all public exercise of the priestly office. 

Until shortly before the meeting of the Convention Mr. 
Binney had not been one of the bishop's advisers, and, in 
fact, had cautioned him against the advisers whom he had 
selected; but when the bishop found himself assailed by his 
supposed friends, he turned to Mr. Binney for help, which 
was freely given and never subsequently withdrawn. Hold- 
ing that the truth could not be established, nor a just conclu- 

242 



1844] BISHOP ONDERDONK'S CASE 

sion upon the whole matter reached, without a fair trial, 
Mr. Binney advised against both the resignation and the 
acknowledgment of unworthiness, but although, by the per- 
suasion of others, this advice was rejected, his loyalty to the 
bishop did not fail. Ultimately, as will be seen later on, he 
aided him to some purpose, but for the time he could do 
nothing except manifest his disapproval by withdrawing 
from all connection with the administration of the affairs 
of the Church. Believing that the sentence was, in its severity, 
utterly disproportionate to the offence, and, in its unlimited 
character, a violation of ecclesiastical law, he ceased to be a 
delegate to the Diocesan Convention, whose original action 
had led to the result, and even resigned from the vestry of 
his parish church. 

Towards the close of 1845 a number of the leading busi- 
ness men of Philadelphia began a movement for the con- 
struction of a railroad from Harrisburg to Pittsburg, so as 
to connect Philadelphia directly by rail with the rapidly 
developing country to the west of the Alleghanies. That 
such a road would benefit the business interests of Phila- 
delphia was manifest ; that it would be directly profitable in 
itself was less certain, though perhaps reasonably so ; but in 
any event the enterprise required what was for those days a 
very large capital. A committee of the promoters came to 
Mr. Binney and explained the details of the project and the 
advantages which the city would derive from its accomplish- 
ment. He fully realized these advantages and declared his 
readiness to subscribe to the stock of the proposed railroad 
company, but found that something more was wanted of him 
than individual financial support. The promoters realized 
that it would be very difficult to secure enough subscriptions 
unless they could arouse an unusual interest in the project 
(what nowadays would be called a " boom") throughout the 

243 



HORACE BINNEY [JEt. 65-66 

city and the State. To this end they proposed calling a 
" town-meeting," at which they wished Mr. Binney to take 
a prominent part. He objected that such a meeting might 
not realize their expectations, while, if it did, the force of the 
public opinion thereby manufactured would tend to practi- 
cally compel many people to join in the scheme contrary to 
their own wishes or judgment. He held that the building 
of the railroad was a plain business proposition, to be con- 
sidered calmly, and in which every man was entitled to join 
or not, as he might see fit, without being in any way subject 
to criticism for refusing. The committee did not adopt this 
view, and a town-meeting was held on December 11. Enthu- 
siastic speeches were made and delegates were appointed to 
secure a charter and enlist general support for the enterprise. 
The Legislature was applied to, and on April 13, 1846, a bill 
to incorporate the Pennsylvania Railroad became a law. 

By this time the promoters realized, or at least saw fit to 
acknowledge, that all the enthusiasm they could arouse would 
not suffice to induce private individuals or business corpora- 
tions to unloose their purse-strings sufficiently to subscribe 
the requisite capital, and they proceeded to take a further 
step. A second town-meeting was held April 27, and resolu- 
tions were adopted recommending to the Councils of Phila- 
delphia and to the commissioners of the various incorporated 
districts in the county to subscribe to the stock of the new 
company. Such a subscription meant necessarily that the 
city should borrow the money, and should levy taxes to pay 
interest on this increased debt, except in so far as dividends 
upon the stock might ultimately cover such interest. Mr. 
Binney considered that the city had no power to incur debt 
for such a purpose, that even if empowered, it could not 
wisely or properly make such a use of its credit, and that 
the attempt to overawe and compel the Councils to make the 

244 



1845-46] PENNSYLVANIA R. R. SUBSCRIPTION 

subscription, by stirring up a popular feeling on the subject, 
was a gross outrage, all the more to be condemned because 
the leaders in the campaign of coercion were men who stood 
high in the community and should not have condescended to 
use such methods. For a time, however, he kept these 
opinions to himself. 

The stock-books were opened on June 22, and the com- 
paratively meagre subscriptions showed either that public 
enthusiasm was not the same thing as public confidence, or 
else that the proposal to make the city and other public cor- 
porations bear a large part of the responsibility had destroyed 
the stimulus to private enterprise. A resolution authorizing 
the mayor to subscribe in the name of the city for fifty 
thousand shares ($2,500,000) was introduced in Councils, 
and its adoption recommended by a committee of both 
branches, but was lost on July 16 in the Common Council 
by a tie vote. Mr. Binney's oldest son, then a member of 
the Common Council, took a leading part in opposing the 
subscription, but without any consultation with his father 
whatever. 

In his argument in the Girard Will case, when speaking 
of the power of the city to administer the trust created by 
the will, Mr. Binney had said, " The city of Philadelphia is 
a great commonwealth; and the powers of the corporation, 
for her good and the good of her citizens, are under no re- 
straint but that of not violating the constitution and laws 
of the State," and he had cited the provisions of the charter 
of 1789 authorizing ordinances, etc., " necessary or conve- 
nient for the government and welfare of the said city." 
Some minds are so constituted as to see no distinction between 
the administration of property given to a city for the benefit 
of a class of the inhabitants and the borrowing money and 
levying taxes in order to join in a great business enterprise 

245 



HORACE BINNEY [JEt. 66 

like a railroad stretching across a State; and accordingly 
Messrs. Thomas I. Wharton and Thomas M. Pettit, in an 
opinion dated June 30, 1846, and published on July 4, cited 
Mr. Binney's language in the Girard Will case argument in 
support of their proposition that the city had the power to 
make the desired subscription. Mr. Sergeant's note of con- 
currence, appended to the opinion, was a great surprise to 
Mr. Binney, but he felt convinced that Mr. Sergeant had 
not examined into the matter with his usual thoroughness. A 
writer in the United States Gazette of July 8, using the nom 
de plume " A Voter," protested against the perversion of 
Mr. Binney's argument, while on the 10th some one, writing 
as " Many Voters," insisted that the argument covered the 
case. " A Voter" then replied at greater length, and in the 
course of a rejoinder " Many Voters" said, " I have a right 
to assume, if not to infer, from these premises that the prin- 
ciples of the certificate submitted to Councils unites (tic) in 
its favour the name of Horace Binney to those of John Ser- 
geant, Judge Pettit, and T. I. Wharton." On the 17th a 
third anonymous writer in the Gazette denied the propriety 
of the inference, and said that Mr. Binney's opinion had 
better be asked and not assumed. 

Some persons had known Mr. Binney's character so little 
as to suppose that he was himself the anonymous " Voter," 
but he set the matter at rest by a letter, published in the 
Gazette of the 18th, intimating that he was rather tired of 
having his name and supposed opinion bandied about in this 
way, and stating positively that he had had nothing, directly 
or indirectly, to do with anything that had been published 
in regard to the controversy. He added: "I have my 
opinions, it is true, upon the questions which agitate the city, 
and I humbly claim the right to hold them; but with any- 
body, except one member of the profession older than myself, 

246 



1846] PENNSYLVANIA R. R. SUBSCRIPTION 

I do not think that I have held altogether five minutes' con- 
versation about any of them." 

While his opinion had not yet been expressed, it had been 
formally asked in regard to the right of the city to subscribe, 
and had, in fact, been written, for it is dated July 14, but the 
pamphlet did not appear until a few days later. The opinion 
contains an exhaustive review of authorities, concluding as 
follows : 

This doctrine is liberal yet reasonable, giving the power to tax 
for all expenses incident to corporate duties, but denying it for the 
expense of what is not a corporate duty, though it may be alleged 
by the majority to be convenient to or to promote the welfare of the 
inhabitants. If the taxing power of the corporation can be carried 
beyond this, the inhabitants of this city and their property are not 
under the protection of the Legislature of the State, but at the mercy 
of a majority of the city Councils whenever they are satisfied by a 
speculative inquiry that the money, whenever and upon whatever ex- 
pended, will promote the welfare of the city. 

The result of the whole is that the subscribing, the borrowing, 
and the taxing, being none of them incident to the exercise of a power 
for the government of the city, for its welfare, cannot lawfully be 
exercised by the Councils, but that each and all of them, though ordi- 
nances be passed to authorize them, will be without any lawful author- 
ity whatever, and therefore void. To this opinion I have come. I 
may be wrong. As other gentlemen of the profession differ from 
me, either they or myself must be wrong. I shall bow respectfully 
to the judicial department if it shall reject my conclusion. In the 
mean time I do not think that I am likely to reject it myself. 

When the result of the vote in the Common Council was 
announced, one of the newspapers supporting the railroad 
significantly remarked that " this will probably be decisive 
until after the October election." The full meaning of this 
remark became apparent when the nominations for the au- 

247 



HORACE BINNEY [JEt. 66 

tumn election were made. The Whig party was in a minority 
in the city, but it could reasonably count on a large plurality 
of the votes, as the opposition to it was divided between the 
Democratic and Native American parties, and in this par- 
ticular year the indignation due to the reduction of protective 
duties by the Democratic tariff bill was such as to assure a 
Whig victory beyond peradventure. The candidates for 
Councils were voted for on a general ticket for the whole 
city, and when the Whig nominations were announced it was 
realized that most of the Whig members who had opposed 
the subscription, including Horace Binney, Jr., had not been 
renominated, their places on the ticket being taken by men 
who were believed to side with the railroad. That this was 
the work of the railroad promoters no reasonable man could 
doubt, although the move was partly concealed by their open 
advocacy of a " railroad ticket," composed of candidates 
selected from the tickets of the three regular parties, but 
chiefly Whigs. The existence of a ticket avowedly in favour 
of the railroad interests would naturally tend to mislead some 
voters into thinking that the Whig ticket was not in the main 
a " railroad ticket" also. 

The utilization of party machinery for private ends was 
not so common in 1846 as now, and called forth an indignant 
protest. An address to the citizens of Philadelphia, signed 
by Mr. Binney and sixty-eight others, all of them men who 
either had already won by their merits, or were destined ulti- 
mately to win, the very highest standing in the community, 
was published on October 9. It began with this statement: 

A majority of the ward delegates, elected by the Whigs in the 
last summer to select candidates for the coming election, deemed it 
fit to make their selection for the city Councils in such a manner as 
in case of success will secure a majority in both Councils in favour of a 

218 



1846] PENNSYLVANIA R. R. SUBSCRIPTION 

subscription to the stock of the Pennsylvania Railroad. Without 
any instructions to this effect from the people who were their con- 
stituents, without any previous general notice that the ward elections 
for delegates were to turn upon this distinction, and in departure 
from the purpose of their appointment, which was to select candidates 
possessing general fitness as representatives of a political party and 
as guardians of the city interests, they have rejected and selected 
with an exclusive view to a particular local measure. As far as party 
organization can attain this end, they have closed the door against a 
free expression by the people upon this momentous subject, and 
against the election of any other Councils than such as by prear- 
rangement will cast a majority of votes in favour of this subscription; 
and if the candidates thus selected by the Whig delegates shall re- 
ceive the votes of all who usually vote with their party, and the party 
shall have its usual success, the subscription, we have no doubt, will 
be authorized by an ordinance, whether the city have lawful authority 
to make it or not and whatever may be the consequences of such a 
vote. 

After a review of the railroad movement, and of the 
objections to a subscription by the city, the address concluded 
by recommending a ticket composed of the best men on the 
three regular tickets, men who, though not pledged in any 
way, could be trusted to vote conscientiously, without regard 
to popular clamour. 

As Mr. Binney's name heads the signatures to this ad- 
dress, and as it is an appeal to reason and fair dealing, not 
to prejudice, it was presumably the work of his pen. It was 
met by a numerously signed address in favour of the sub- 
scription, denying complicity in the Whig nominations, 
urging voters to support the " railroad ticket" already re- 
ferred to, and alluding to the opposition to lighting the city 
with gas when that project was first started. The insinua- 
tion that the subscription was only opposed by the class of 

249 



HORACE BINNEY [^t. 66 

people who always oppose what is new, without regard to 
its advantages, was still more pointedly made by a writer in 
the United States Gazette of October 12, signing himself 
" Clinton." Referring to the address signed by Mr. Binney, 
he said, — 

A more singular and surprising document emanating from a 
respectable source, I will venture to say has seldom been addressed 
to the public. I very much mistake its destiny if it does not shortly 
take its place beside the Anti-Gas and other non-improvement remon- 
strances which a few years since issued from the same distinguished 
source, and which are now among the most remarkable literary and 
politico-economical curiosities of the age. 

The reference to " the same distinguished source" was 
practically an assertion that Mr. Binney had himself been 
one of those who in 1833 had got up the "Anti-Gas" remon- 
strances to Councils. This covert assertion rather took the 
popular fancy and gained credence, though it is significant 
that no one made the assertion directly and publicly, so as to 
give Mr. Binney an opportunity of meeting it. It was, how- 
ever, the foundation of what is probably the general belief 
of Philadelphians to this day, to say nothing of those wits 
in other places for whom Philadelphia often serves as a 
target. While it was beneath Mr. Binney's dignity to notice 
the assertion publicly, the following letter to his son, dated 
October 12, 1846, the day that " Clinton's" letter appeared, 
shows the truth of the matter. 

My dear Horace, — 

If a memorial against gas was even signed by me, I will believe 
it when I see my signature and not before ; but altho' I have probably 
given more offence by refusing to sign memorials than almost any 
other man in the city, I cannot say that I did not sign. That I wrote 
the memorial or promoted it, otherwise than possibly by signature, 
I deny. I deny it, not that I recollect anything about it, but because 

250 



1846] PENNSYLVANIA R. R. SUBSCRIPTION 

I do not believe it possible that such a fact, if it existed, should have 
left no trace whatever on my memory. I have not the slightest recol- 
lection that I ever was opposed to the measure of introducing gas, or 
even thought about it. If this is the greatest lie they tell about me, 
don't be disturbed. They are welcome to any part of my character 
that they can take away, and much good may it do them. I hope to 
keep some for my own use, in spite of all they can do. 

Affy. Yrs, 

Hor: Binney. 

P. S. — I recollect well that (and I believe it was while I was 
in Congress) I especially promoted Mr. Merrick's mission to Europe 
to examine the English and other gas-works, and I obtained a letter 
for him from the Department of State to promote his object. 4 

The denial is not absolute in terms, but all who know 
Mr. Binney's strength of memory and habitual cautiousness 
of statement, to say nothing of his rigid truthfulness, must 
realize that " Clinton's" covert assertion is in effect very posi- 
tively denied. To the end of his long life Mr. Binney's 
memory was one of his strong points, and this letter was 
written when he was not yet quite sixty-seven, and less than 
thirteen years after the anti-gas petitions were circulated. A 
less cautious man would have given an out-and-out denial, 
but Mr. Binney's guarded language carries even greater con- 
viction with it. 

To return, however, to the matter of the subscription. 
The address in opposition was unheeded, the Whig victory 
carried with it the election of the " slated" Councilmen, and 
in November, 1846, both branches of the new Councils voted 
for the subscription. The amount subscribed, $2,500,000, 
one-fourth of the entire stock of the railroad company as then 



4 The publication of this letter, at the present writer's request, in the Evening 
Bulletin of December 28, 1902, has probably prevented the story from receiving 
much attention hereafter. 

251 



HORACE BINNEY [Mt. 66-6* 

authorized, was subsequently even increased to $4,000,000 
Still, in spite of the positiveness of the legal advisers of th( 
subscription, those concerned in the undertaking did no1 
really feel sure of their ground, and as soon as the Legisla 
ture met in 1847 a bill was introduced expressly authorizing 
municipal corporations to subscribe to the stock of the com 
pany. Hoping that the subscription might not be persisted 
in if such an authorization were refused, a memorial, writter 
apparently by Mr. Binney, was presented to the Legislature 
on January 26 against the proposed bill. Even the Harris- 
burg correspondent of the North American, a papei 
avowedly in favour of the subscription, referred to this 
memorial as " a well-written document, and its arguments 
close and strong.' ' As a matter of fact, the memorial was not 
actually needed, the lower house having rejected the bill a 
few days before, which killed it for that session. By this 
time, however, the railroad promoters had come to regard the 
subscription as a matter of life and death to their enterprise, 
and it was actually made without waiting for legislative 
authorization. 

In this matter of the city's subscription Mr. Binney and 
those who stood with him suffered for a while the usual 
penalty of opponents of a popular measure, being laughed 
at as old fogies and obstructionists; but in time they received 
the almost equally usual vindication of those who follow 
reason and judgment as against popular clamour, a vindica- 
tion which may be read in opinions of the Supreme Court, 
in the statutes, and even in the Constitution of Pennsylvania, 
but which is probably most complete to-day in the view which 
numbers of the most thoughtful citizens hold in regard to 
the results of the steps taken in 1846. 

The vindication of Mr. Binney's view of the legality of 
subscription came speedily. Among those who controverted 

252 



1846-48] PENNSYLVANIA R. R. SUBSCRIPTION 

his opinion was the Hon. Thomas Sergeant, 5 a justice of 
the Supreme Court of the State. Oddly enough, Judge 
Sergeant had wholly forgotten 6 that in May, 1839, the court 
of which he was then a member had decided in accordance 
with Mr. Binney's view in McDermond VS. Kennedy, an 
unreported case. 7 That case concerned a tax levied by the 
borough of Newville in Cumberland County to pay a sub- 
scription of the borough towards the cost of bringing a rail- 
road near the town. The Common Pleas had held that the 
power of the borough to enact rules, ordinances, etc., " to 
promote the peace, good order, benefit, and advantages of 
the said borough," referred to corporate rights and duties 
only, with which the railroad had nothing to do, and the 
Supreme Court had affirmed the decision. As soon as atten- 
tion was called to this decision, the authorization which had 
been refused in 1847 became a practical necessity, and a 
more pliant Legislature passed the act of March 27, 1848, 
authorizing Alleghany County, the cities of Pittsburg and 
Alleghany, and the municipal corporations in Philadelphia 
County, and retroactively authorizing the city of Philadel- 
phia to subscribe to the stock of the Pennsylvania Railroad 
Company, to borrow the money to pay the amount subscribed, 
and to provide for paying the principal and interest of the 
loans. "It was therefore settled that the original subscrip- 
tion of the city to the Pennsylvania Railroad Company was 
invalid." 8 



5 Judge Sergeant's opinion was published in the United States Gazette of 
November 16, 1846. 

"Apparently the three other surviving justices had forgotten it too, as none 
of them called attention to it at that time. 

7 Since reported in Brewster, 332, and 3 Clark, 490. 

8 Pennsylvania Railroad Company vs. City of Philadelphia (47 Pa., 189, 
193). In Mr. Binney's opinion the act of 1848 was itself an unconstitutional 
violation of the principle of equality in the contributions of the citizens to public 
burdens. 

253 



HORACE BINNEY [^Et. 66-68 

Mr. Binney's position as to policy was vindicated as 
fully, though more slowly. From time to time for several 
years the Legislature authorized Philadelphia and various 
counties and municipalities to subscribe to the stock of cor- 
porations about to be formed, so that after a while Phila- 
delphia held " five millions of valuable stock, and five mil- 
lions of utterly worthless stocks in various railroad companies, 
subscribed under a great outside pressure [precisely the con- 
dition which Mr. Binney had protested against in 1846]. 
The evils of these subscriptions by counties and municipal 
corporations were so aggravated that it became necessary to 
interfere and prevent by a constitutional prohibition all 
future pledges of municipal faith and property for such 
purposes under the sanction of the Legislature, who alone 
possessed the power to grant the proper authority." 9 Ac- 
cordingly in 1857 the Constitution was amended so as to 
provide as follows : 

The Legislature shall not authorize any county, city, borough, 
township, or incorporated district, by virtue of a vote of its citizens, 
or otherwise, to become a stockholder in any company, association, or 
corporation ; or to obtain money for, or loan its credit to, any corpora- 
tion, association, institution, or party. 

The same provision with slight verbal changes is found 
in the Constitution now in force. 

The worst result of these investments in railroad stock 
by Philadelphia and other communities in the State was not 
the loss of many millions of the taxpayers' money, but the 
close association and alliance thereby created between certain 
powerful corporations and the various municipal govern- 



• Pennsylvania Railroad Company vs. City of Philadelphia (47 Pa., 189, 
193). 

254 



1846-48] PENNSYLVANIA R. R. SUBSCRIPTION 

ments, an association and alliance which is generally thought 
to be closer to-day than ever, and to be one of the leading 
causes of the misgovernment long so manifest throughout 
the State, and especially in Philadelphia. The city sold its 
Pennsylvania Railroad stock (at a profit, it is true) after 
some thirty-five years, but the alliance between those in con- 
trol of the two corporations survived the sale. Those who 
attended a crowded meeting held at the Academy of Music in 
Philadelphia on February 4, 1890, to protest against the 
action of Councils, under the influence of the Pennsylvania 
Railroad, in blocking the improvements which rival com- 
panies sought permission to undertake, may recall the loud 
applause which greeted a leading member of the business 
community, the very class who in 1846 had demanded the 
city's subscription to the stock of the railroad, when he de- 
clared that time had proved that policy to have been a mis- 
take, that " that subscription was the birth of a railroad, but 
the death of our city.'' Mr. Binney's vindication would seem 
to be complete. 

While Mr. Binney held the course pursued by the pro- 
moters of the railroad company to be unjust and dangerous, 
his antagonism was in no sense personal, and after the sub- 
scription had been legalized they were very anxious to have 
him become a stockholder, to show that he did not oppose such 
an important business enterprise. He replied that he never 
had opposed the railroad except as regards their involving 
the city in a large illegal risk, and their doing so by the force 
of popular clamour; but that having publicly declared his 
opinion on these points, which he held to be matters of prin- 
ciple, he could not consent to impair the force of his example 
by taking a single share of stock in the company, and he 
never did. 

The period from 1844 to 1848 saw the annexation of 

255 



HORACE BINNEY [Mt. 67 

Texas and the Mexican War, both events bringing increased 
strength to the slave power. Mr. Binney heartily condemned 
both, but of all his letters written at that time, the following 
is almost the only one that remains : 

(To the Hon. D. A. White.) 

Philada. Feb. 22, 1847. 

I cannot tell you what pleasure I have derived from your 
eulogy upon Pickering. How true it is from beginning to end ! How 
worthy of him, how like him, how like to him, how exactly the thing 
which those who knew him in his youth, and from his youth, desired 
to have ! It has taken me back to our college life, and brought before 
me almost all my intercourse with him ; and such as I knew him to 
be, such he ever was afterwards, by natural and perhaps necessary 
development, not a branch of a twig having been turned from its true 
course and shape by the flaws of life which distort ill-rooted men, or 
by the affectation which would bend them in a way they're not in- 
clined to. He was pure, gentle, affectionate, social, faithful, wise, 
sober, grave ; a companion for all hours, a friend for all occasions ; 
a most excellent person, apart from his knowledge and literature. 
You have shown him in all his virtues, as well as in his works. How 
well I recollect him, how truly I loved him, how thoroughly am I 
delighted and satisfied with what you have said of him ! 

Are there many such men nowadays? Are there any such? 
Are such men born ; do they germinate in this century ? I hope so, 
with my whole soul, for both of us have sons who have come into this 
American world since the beginning of that disastrous twilight which 
the eclipse of old Federalism ushered in. May they not be dwarfed 
and wilted in it, like the poor plants in a cellar! But I have great, 
great fears. Such men as Pickering, and those who were best reared 
in his day, were told to take a star for their guide, and the sky was 
clear enough in their youth, and they saw it, and followed it. But now 
the skies are overcast, and instead of looking upward for our guide, 
we look into each other's faces to get our cue, and shape our courses 
and ends by the smiles or frowns that we see there. Instead of a 

256 



1847] MEXICAN WAR 

pure and true nature being drawn out by elevated principle, it is 
twisted and bent and perverted by a spirit of conformity to what is 
about us. We are a public-opinion-loving, a popularity-seeking peo- 
ple. It is the same with men and boys. I have no hopes of it. The 
flight is too low and too irregular for my augury. It is a comfort, 
however, to have lived a cotemporary of so fine an example of a true 
light truly followed, of a high standard amply attained, as we have 
had in the case of our college friend, of your, and I always envied you 
both your neighbourhood, friend of a whole life. 

I don't know if you look to Washington, or think of it, or of 
the Mexican War, — the scorpion No. 1 from the egg of Texas. It's 
of no use. But without thinking of either, I confess to the comfort 
of seeing how soon the bloody instructions have returned to plague 
the inventor. They cannot " trammel up the consequence" for their 
souls, and I suppose that we may thank God for that, without any 
treason. 

In April, 1848, the decision of the Supreme Court of 
Pennsylvania in Murphy vs. Hubert, 10 to the effect that the 
Statute of Frauds did not apply to trusts, or equitable estates 
or interests in lands, attracted Mr. Binney's attention, Chief 
Justice Gibson's very brief opinion having been shown to him 
in manuscript soon after it was delivered. He considered 
that it involved a misinterpretation of the statute, and might 
have very serious consequences in inducing the perpetration 
of fraud and perjury by parol declarations of trust. In 
order to bring about a reconsideration, if possible, or a new 
statute to cover the breach made in the old one, he published 
in October a very careful review of the law upon the sub- 
ject. The decision was not reconsidered, but the act of April 
22, 1856, ultimately extended the Statute of Frauds to 
equitable estates. 



10 7 Pa., 420. 
IT 257 



HORACE BINNEY [^Et. 69-70 

In the death of his older sister, Mrs. Wallace, in July, 
1849, Mr. Binney suffered a loss second only to that of his 
daughter many years before. Companions in childhood and 
youth, both of them mentally gifted to a high degree, they 
had always been in close sympathy, and their admiration and 
love were reciprocal. Another sorrow came the following 
month in the death of Charles Chauncey, the most intimate 
of all Mr. Binney's friends outside of his own family. Their 
acquaintance, begun immediately after Mr. Chauncey came 
to Philadelphia from Connecticut, in 1798, had speedily 
ripened into warm friendship (possibly all the sooner from 
the fact that Mr. Binney, having returned from New Eng- 
land less than a year before, felt himself still somewhat of 
a stranger) , and from the time that the latter found his place 
at the bar they were associated together in a number of cases, 
and opposed in perhaps an equal number. On Mr. Binney's 
side the friendship was based more on regard for Mr. Chaun- 
cey's high character and attainments than on any great con- 
geniality of temperament, for the nature and points of view 
of each were strongly individual. The one was essentially a 
Connecticut man, while the other showed unmistakably his 
descent from the men of Massachusetts Bay. Yet the friend- 
ship was very genuine, and during more than fifty years had 
never been clouded but once, when an explanation, given as 
frankly as it had been sought, speedily cleared matters up. 

At the meeting of the bar, held August 31, Mr. Binney 
was the chief speaker, although it was with difficulty that he 
could bring himself to dwell publicly upon his friend's gentle 
and honourable character. The theme was almost too sacred 
for him to touch, even before his brothers of the bar. 



258 



1849-50] RETIREMENT 

XI 

LIFE IN RETIREMENT— LITERARY WORK 

1850-1859 

FOR nearly thirteen years Mr. Binney had devoted 
himself to office practice, investigating and giving 
opinions on legal questions, and this work had in- 
creased in volume as the years rolled on. In the spring of 
1850 some exceptionally severe work brought on a serious 
inflammation of the eyes, which he took as a warning to give 
up all professional labours whatsoever. From this time on 
he refused to undertake any such work except where the re- 
quest was based on some special claim of friendship, and 
these exceptions were gradually brought to an end by his 
declining all compensation. He had no intention of sinking 
into a life of indolence, however, pardonable as such a life 
might have been at his age. On the contrary, as far as his 
eyes permitted (and in time they substantially recovered), 
he kept himself fully occupied, but free to read or write what 
and as he chose, without being hampered as to time or subject 
by any professional responsibility. He rarely now appeared 
at any meeting of a public character, but all important public 
matters received his careful attention. His advice was given 
whenever sought, and though never anxious to see himself in 
print, he made his opinions publicly known whenever he felt 
it incumbent upon him to do so. As Sir J. T. Coleridge wrote 
of him in 1860, he was contented, or, rather, he preferred " to 
enjoy the happiness of a domestic and literary retirement, 
exercising only that influence on the State — difficult to meas- 
ure, but large in amount — which almost necessarily attends 

259 



HORACE BINNEY [JEt. 70 

the great and excellent, who, living without office or profes- 
sion, seeking no distinction, but shunning no social duty, are 
ready and efficient agents for good to all within their 
sphere." * 

His time at last being his own, so far as any man's can 
be, he was able to take up subjects of more general and per- 
manent interest than the legal points with which he had been 
so long concerned, and hence to this later period of his life 
belong most of his printed writings. It has apparently been 
thought that for a certain time his mental vigour declined to 
some extent, but that after some years of rest he ultimately 
regained it in full. 2 There is really nothing to justify any 
such idea. The strength and brilliancy of his mind were not 
even temporarily impaired by age, but after 1850 he was left 
free to follow his own bent, and this freedom soon bore fruit 
of a kind which his years of professional labour had not pro- 
duced. Not all of this fruit was given to the public, but it 
is a fact that after 1850, as before, he continued to make the 
most of himself in reading and writing, merely directing his 
mind to other channels of thought than those which, in the 
main, it had followed previously. 

In October, 1850, the Constitution of Pennsylvania was 
still further changed by making all judicial officers elective. 
Mr. Binney had been expecting this change ever since the 
tenure of good behaviour had been abolished in 1838, and his 
expectation that this system would prevail throughout the 
States generally has also been fulfilled, for to-day the ju- 
diciary is wholly elective in thirty-five States (in eighteen of 



1 Quarterly Review, April, 1860. 

* Hon. Hampton L. Carson, who wrote several interesting articles on Mr. 
Binney's life and works in 1892 for the Philadelphia Times, seems to have had this 
idea when he referred to Mr. Binney's " now thoroughly awakened mind," and to 
the melting of " the frost of age which had congealed his blood." 

260 



1850] JUDICIAL TENURE 

these for the short term of six years for the highest court, 
and in two for even less), chosen by the Legislature in two, 
partially or wholly appointive in eight, and with the tenure 
of good behaviour in three only. New Hampshire, Mas- 
sachusetts, and Rhode Island alone have the distinction of 
upholding the traditions of an independent judiciary, and 
even in these States it does not extend to justices of the 
peace. 

So far as concerns the national judiciary, the people have 
fortunately shown that they possessed a greater residuum of 
conservatism than Mr. Binney anticipated, or at least that 
they did not think an elective judiciary so important as to 
warrant an attempt to overcome the practical difficulties 
which now prevent almost any change in the Federal Con- 
stitution, whether wise or unwise. His own expectation in 
1850 was that whenever three-fourths of the States had estab- 
lished for themselves an elective judiciary, holding office for 
a term of years only, they would put the Federal judges 
upon the same basis, and this expectation was certainly not 
unreasonable, in view of the many constitutional changes 
which he had already seen. " James I. and James II.," he 
wrote, " thought that every judge should hold his office at 
the pleasure of the crown. All despots think the same thing; 
and here universally the majority of the people is the despot, 
more absolute than any James, because there is nobody to 
confront them. When constitutions were first made among 
us, there was a disposition in the people to part with power 
to their representatives, and when it was of a nature not to 
be given to representatives, nor to be possessed safely by 
themselves, they were disposed to tie their own hands. That 
day has gone by. The day has come in which the people de- 
sire to reclaim all the power they have parted with, and they 
will do it, and without the slightest apprehension that they 

261 



HORACE BINNEY [Mt. 72 

will not use it all for the public good. James II., I have 
no doubt, thought the same. ... I would cheerfully give 
the appointment to the people if they could give the power 
away from themselves, to be held by the only tenure that 
reason and experience sanction for the security of liberty 
and property, the tenure of good behaviour; but the tenure 
at the pleasure of the appointing power, it being effectively 
the supreme power in the State, is both a crime and a 

folly." 

Happily the final change which Mr. Binney feared is far 
less likely now than it seemed half a century ago, and it is 
not too much to say that throughout the country the Federal 
judges, as a rule, stand higher in public esteem than those 
elected by the people themselves. 

In April, 1852, the Philadelphia Contributionship, the 
oldest fire insurance company in America and one of the 
oldest in the world, celebrated its hundredth anniversary. 
Mr. Binney, who had been a director from 1817 to 1819, and 
continuously since 1831, and was then the chairman of the 
board, delivered an address, tracing the history of the com- 
pany (which began with an insurance for £500 upon the 
house of one John Smith, and a hundred years later insured 
$8,000,000 worth of buildings and had accumulated $700,000 
in premiums) and reviewing the general conditions of fire 
insurance in Europe and America at that time. His object 
was not merely to show the extreme prosperity of the com- 
pany in the past, but to give its members something to think 
about for the future. He pointed out, for instance, the con- 
nection between the very low insurance rates of Paris and the 
excellence of the corps of Pompiers, " governed by one au- 
thority over all, with proper subdivision and subordination." 
" The city of Philadelphia," he added, " as well as the insur- 
ance companies, should ponder this important fact." The 

262 



1852] CONTRIBUTIONSHIP CENTENARY 

point of this statement needed no elaboration for his hearers, 
for the one serious blot on the city's administration at that 
day was in regard to the extinguishment of fires, which was 
left exclusively to volunteer companies, between some of 
whom great rivalry and even bitter feuds existed, so that a 
fire was often the occasion of a bloody fight between the com- 
panies first on the scene. 3 A suggestion of reform may be 
easily read between the lines. 

This year marked Webster's last failure to secure a nomi- 
nation for the Presidency. That he should have sought it 
at all was a matter of deep regret to Mr. Binney, as the next 
letter indicates. 

(To Hon, D. A. White.) 

Philada. Sept. 10, 1852. 
. . . My aspiration for Mr. Webster was, at one time, that 
he should raise himself to the regions of serene air, as such an intellect 
could have raised him, " above the smoke and stir of this dim spot," 
and there accompany this part of earth in its revolution, the living 
oracle of the principles by which this government ought to be admin- 
istered, without condescending to party rewards or turning his ear 
to them. If he had abjured the Presidency and had refused all robes 
but those of the great Senator, I know of no fame, Greek or Roman, 
that has mounted higher. He would have bound around him all the 
conservatism of the country, and, without direct or official rule, would 
have checked and counterpoised all excessive deviations from the true 
orbit of the Constitution. And my fixed faith, after forty years' 
observation, is that the most that a pure and wise party can do for the 
country is to become a check and counterpoise; and that if it must 
also have office and direct rule, it must part with half its virtue to 
obtain them, and in more or less time lose all that can distinguish it 



a The influence of Mr. Binney and other progressive citizens was steadily- 
exerted for many years against this abuse, which was at length reformed, but 
unfortunately not to the extent of freeing the firemen from a degrading partisan 
servitude to political bosses. 

263 



HORACE BINNEY [jEt. 72 

from the worst competitor that takes the field against it. Mr. Web- 
ster has seen the party to which he has belonged growing less and less 
pure for twenty-five years. He must have known it to be the course 
and tendency of all such parties in such a country. Why did he not 
involve himself in his virtue, and rise above the exhalations that were 
about him? Is it that he is wanting in some of the small qualities that 
are necessary to true greatness ? I do not ask you to tell me, and I do 
not want to know. I fear he has not taken his own advice, as he 
ought to have done, upon all occasions, or that his adviser is not 
always that good sense, which only, Pope says, is the gift of Heaven, 
and, though no science, fairly worth the seven. I would not, however, 
be the means of plucking a leaflet from the wreath his great powers 
have won, and therefore beg you to burn this as well as that. 4 

In November John Sergeant died, the last of Mr. Bin- 
ney's fellow-students and of those who had been his intimate 
friends, with whom he had been associated in many legal 
victories, including the last and greatest of them all. The 
intimacy between them had been " never surpassed between 
two men," but for some years before Mr. Sergeant's death 
it had wholly ceased, though for reasons which Mr. Binney 
himself never fully understood. It was Mr. Sergeant who 
had withdrawn his friendship, not Mr. Binney. Owing to 
their position in the community, the severance was perfectly 
well known, but at the bar meeting held on November 26 it 
was felt that no one living could speak of Mr. Sergeant as 
understandingly and appreciatively as Mr. Binney. Con- 
scious of no wrong towards his former friend, in deed, word, 
or thought, he was only anxious that, as the reconciliation he 
had so greatly desired was no longer possible on earth, the 
unfortunate misunderstanding should be shown to be as 
nothing in comparison with the long friendship. Accord- 



* This refers to a previous letter. The request was subsequently revoked. 

264 



1852] DEATH OF JOHN SERGEANT 

ingly he closed his prefatory remarks with these significant 
words : 

I knew him well; I respected him truly; I honoured him faith- 
fully. I honoured and respected him to the end of his life. I shall 
honour and respect his memory to the end of my own. No trivial 
incongruities of feeling or opinion, no misinterpretations, however 
arising, no petty gust, no cloud of a hand's breadth, which may and 
will chill and overcast the common sky of the truest friends in a life 
of fifty-five years, ever for an instant disturbed the foundations of 
my regard for him, or even reached the depths in which they were 
laid. These foundations were laid upon his principles, as I well knew 
them fifty years ago. They were laid deep upon that sure basis, and 
they were beyond the reach of change or chance, as his principles were. 

Then followed a thoroughly sympathetic review of Mr. 
Sergeant's character and career, concluding as a valedictory 
to the bar. 

Mr. Chairman, and gentlemen of the bar, it has pleased God 
that I should survive my two contemporaries of more than half a 
century, — Charles Chauncey and John Sergeant. From the tenacity 
with which most men hold to life, such a survivorship may seem to 
be desirable; but it is not wisely desirable by any man, for it cannot 
be reverently asked of Heaven. . . . Ask it not. Ask for wisdom, 
and length of days may be granted, if it is in the pleasure of God. 
But ask not for length of days. 

It has been my most grateful, most painful duty to declare 

to this bar, upon two occasions, the impressions that have been left 

upon me by the death of these two eminent men. Let no man envy 

me the task, however great the satisfaction may be, in short retrospect 

to myself. Henceforth no such duty remains to me. I have uttered 

the last words at a bar meeting upon the departure of friends. I 

have probably uttered my final words to the bar of Philadelphia, 

except the expression of my most cordial regard and most affectionate 

salutations to you all. 

265 



HORACE BINNEY [JEt. 73 

Mr. Binney succeeded Mr. Sergeant as Chancellor of 
the Law Association of Philadelphia, 5 of which both had been 
founders, but after two years he declined re-election, as his 
age made it uncertain whether he could at all times fulfil the 
duties of the office. 

Early in 1853 Mr. Binney received the sad news of the 
death, in Paris, of his nephew, Horace Binney Wallace, a 
member of the bar and a man of very remarkable culture, 
who, though only thirty-five years old, had already attained 
distinction as a writer, not merely on legal topics, but on art 
and literature. Mr. Binney wrote a short obituary pamphlet 
in regard to his nephew, whose death, as he wrote to Judge 
White, " has afflicted me more than such an event ought to 
afflict an old man, who is near dying himself to all that lives 
on this earth. The notice which I have sketched of him, 
instead of going beyond his merits, as such notices commonly 
do, does not in truth come up to them. He bore my name, 
and that circumstance probably drew me nearer to him when 
he was young, and I as his sponsor in baptism felt a sort of 
duty to observe him ; but apart from personal partiality and 
relation by blood, my fixed opinion is that if his life had been 
spared he would have been one of the first writers, critics, and 
lawyers of the age, and that his death is a great public loss. 
This also is the general opinion of the profession in this 
city." 

Mr. Binney's keen sorrow over this bereavement long 
remained. Even two years later a letter wholly devoted to 
the same subject shows that it was still fresh in his mind. 

One of the tasks which Mr. Binney set himself during his 



8 He had been an active member of the Library Committee from 1805 to 1827, 
and Vice-Chancellor and ex-officio Chairman of the Committee of Censors from 
1827 to 1836. 

266 



1853] THE ALIENIGEN^E 

years of retirement was to go over his reports, and prepare 
notes showing the subsequent development of the law along 
the lines of the various cases reported. This work he com- 
pleted in February, 1853, but it never appeared in print. He 
never could be brought to believe that any product of his pen 
was really valuable, and ultimately gave binding instructions 
that all these notes should be destroyed after his death, and 
it was done accordingly. 

In consequence of this review of the reports, he wrote, 
" my respect for Chief Justice Tilghman is much increased, 
and it is surprising that in this day of judicial legislation and 
speculation, his decisions should have been so little disturbed. 
Notwithstanding professions, I doubt whether his successor 
thought well of him, or rather was willing that others should 
think he thought well of him. He differed from him some- 
times without a shadow of reason ; and in one or two instances 
I have shown this, perhaps unsparingly. There was no pos- 
sible comparison between the men in fundamental learning, 
in calm reflective consideration, in judicial integrity in its 
highest and best meaning, in logical connection, and, above 
all, in prospective wariness." 

By the year 1853 the great increase in the volume of 
American travel in Europe had made the question of the 
citizenship of children born in foreign parts a very practical 
one. The naturalization laws did not cover such cases, and 
all attempts at a change in the law had hitherto failed. In 
fact, one of Mr. Binney's own grandsons was an alien as the 
law then stood. During this year he wrote a timely essay on 
" The Alienigense of the United States," and its publication 
undoubtedly aided in securing the passage of the Act of 
February 10, 1855, now Section 1993 of the Revised Statutes 
of the United States, which established the citizenship of the 
foreign-born children of citizens. " Congress, I learn," wrote 

267 



HORACE BINNEY [jEt. 74 

Mr. Binney shortly afterwards, " have passed a bill for the 
relief of the alienigence, and, for a wonder, as it was a very 
reasonable bill, President Pierce has not vetoed it." 

The movement for the consolidation of the city of Phila- 
delphia and the surrounding districts into a single munici- 
pality, unsuccessful in 1845, was renewed some years later, 
when conditions had materially changed, owing to the great 
increase in the population of the districts. Mr. Binney's ad- 
vice was therefore sought, and in a letter of June 23, 1853, 
to his son, one of the leaders of the movement, he declared his 
adhesion to it. 

I regard all the objects of local and immediate interest at this 
time in the city as much more intimately connected by intrinsic rela- 
tions than they are by mere contemporaneousness. The fire depart- 
ment, the groggery system, the venal selection of candidates for office 
by bargains, expressed or implied, for the benefit of the wire-workers, 6 
and the tax collection system all act upon and are acted upon by each 
other. Those, therefore, who are of the same mind as to one or two 
of these may very properly unite in the reform ticket with those who 
are more interested in other objects. ... I have come to the opinion 
that we must have a united power through all the parts of our city 
and districts to make any of these reforms attainable ; and although 
in the beginning I opposed what is called consolidation, and both 
wrote and spoke against it, and still think that it will have its specific 
evils or inconveniences, yet its highly probable effect will be to put 
down certain very gross abuses of recent } r ears, and I no longer oppose 
it. Indeed, in some respects, the grounds of my opposition have become 
obsolete. That has already happened in the city which I feared con- 
solidation would bring about ; and consolidation, under a good charter, 
may now tend to prevent further progress in the same bad course. 



8 Consolidation, unfortunately, failed to remedy this great evil, thus showing 
clearly that good laws cannot take the place of civic righteousness. The hope 
expressed at the close of the above extract, referring evidently to the election 
of better men to the city Councils, was not realized. 

268 



1854] CONSOLIDATION 

The letter went on to point out the necessity of electing 
men of the best type to both houses of the Legislature to 
urge the passage of the consolidation bill, and dwelt specially 
upon the great benefit that would result if Mr. Eli K. Price 
would consent to serve in the State Senate. This course was 
pursued, and through Mr. Price's efforts the consolidation 
bill became a law on February 2, 1854. When Mr. Price, in 
1872, wrote an historical account of " The City's Consolida- 
tion," he dedicated the book to Mr. Binney, making the 
following acknowledgment : 

Though not personally an actor in the work of consolidation, 
the counsel and countenance of Horace Binney were invaluable to his 
active juniors, and with the public largely influential. With the 
writer his opinion was authoritative to induce him to submit to the 
demand of his fellow-citizens to represent them in the Senate. 

The year 1854 was marked by a movement for the acqui- 
sition of Cuba. Conditions have changed since then, but in 
view of the recent expansion of the United States, Mr. 
Binney's idea of the scheme, written to his son, then in 
Europe, may not be devoid of interest. 

June 14, 1854. 
. . . They talk, you may see by the Ledger, though perhaps 
it is not there, of a Commission to Spain to purchase Cuba, or some- 
thing like that, Mr. Dallas and Mr. Cobb to be adj oined to Mr. Soule, 
the present member. If you should see the Queen of Spain, give my 
compliments to her, and tell her, and you may tell the Emperor of 
France and the Queen of England the same thing, if you get a private 
opportunity, that if they want to give us something to do at home 
for the rest of our lives, so that the people abroad may mind their 
own business, by all means to sell us Cuba. I have heard of a man's 
wanting to sell a travelling menagerie, consisting of rattlesnakes, 
two porcupines, and a grizzly bear, with the option of taking a hyena 

269 



HORACE BINNEY [^Et. 71-75 

if the purchaser liked him upon a trial. Whether he found a pur- 
chaser, I do not know. But I would take a whole island full of such, 
without any trial at all, rather than four hundred thousand slaves 
and half as many bozales (slaves in violation of law) who must be 
sent back or declared free, and with them a slave island, for the 
approaching dissolution of this Union. It will be hard to hold us 
together as things are; but with a slave island State of Cuba, pur- 
chased by this free and enlightened republic, it would be only im- 
morally possible — morally impossible, I should say, without any doubt. 
For Cuba would necessarily be only the first island, if it did not put 
an end to us; and a chain of black beads about our Caucasian throat 
ought to choke us, if it should not. In fine, Cuba, Nebraska, and the 
Mexico Gadsden treaty mean progressive slavery, and mean nothing 
else; and in my opinion, when this shall come to be the declared and 
settled policy of Congress, the long-headed people of some of our 
Atlantic States will be inquiring whereabouts the break had best be, 
and prepare accordingly. When our Confederation policy — which 
was progressive emancipation — shall be completely reversed, I think 
it will be found that the old account book by double entry, black and 
white, is full, and that some portion of this people will open another, 
by single entry, all white. The future has been growing darker and 
darker to me for thirty years, — I mean the political future, — and is 
now very dark and fuliginous. Doubtless it is in part the fault of my 
old eyes ! Franklin Pierce, I hope, sees farther and better than I do. 
We shall know something more of it about the time of the next Presi- 
dential election. 

Nothing further at present. All here, especially your mother, 
send a thousand embraces. I shall want to hear something of whom 
and what you see, after you get out of the entry, into the house ; but 
what I most desire to learn is that your throat gives you no further 
trouble, which, however, I expect will come at the conclusion, and not 
immediately. 

When in New England in the summer of 1851, Mr. Bin- 
ney had wished to revisit the scenes of his boyhood, and espe- 

270 



1851-55] MENOTOMY 

cially to show them to his wife. Watertown and Dr. Spring's 
house were readily found, but Menotomy, where he had lived 
the year before entering college, seemed to have vanished 
from the earth. Starting out on a road which he thought he 
knew as well as any Philadelphia street, he found strange 
houses and new and confusing cross-roads. The name of 
Menotomy was unknown either to the driver or to the people 
whom they met. Unfortunately their time was limited, and 
so, when after a little they saw a pond, — " I said to my 
wife, ' there, there it is,' for which she gave me a kiss, I know- 
ing all the time that it was not the pond, but determined not 
to disappoint her. It was Fresh Pond, a mile or two to the 
south of Menotomy. We got what pleasure we could from 
this pretty view, my wife, of course, imagining that she saw 
the very house that I resided in and the pond where I caught 
a memorable pike she had heard of, and I dodging as well as 
I could her minute inquiries about precise localities, so as to 
avoid any very dingy lie. Menotomy, however, as a reality, 
was at least two miles off." 

In 1855, when on a visit to his younger son at Providence, 
Mr. Binney was more successful. After visiting Cambridge 
to note the buildings (Stoughton, Holworthy, etc.) which 
were new since his college days, and to point out his old rooms 
in Hollis, " we proceeded on the public road, I to Menotomy, 
the driver and horses to West Cambridge. The road I knew 
well, the houses, some handsome, some common, I knew not 
at all. In about three miles, the driver was making a short 
turn to the left. ' Halt,' I cried out ; ' you are going wrong ; 
that is not the way to Menotomy. Keep on as you were, and 
go ahead.' His answer was, ' That is the road, sir, to Spy- 
pond,' and I saw at the corner a placard ' Spy-pond Hotel.' 
I repeated, ' Go ahead. I don't want that Spy-pond, I want 
Menotomy.' ' I will drive just as you tell me, sir, but I don't 

271 



HORACE BINNEY [JEt. 75 

know that place.' ' Keep on as you were, and when you see 
a graveyard, turn short to the left alongside of it.' In a 
minute we spied the gravestones, and in another minute we 
took the left turn, which brought me at once to the place 
where I had passed so many cheerful months. But, to my 
grief, a large showy house, coming out nearly to the road, 
had apparently supplanted my old abode, and my landmark 
was gone. I told the driver to walk his horses, and I was 
about to curse the man that had removed his neighbour's 
landmark, when, as we turned the corner of this new house, 
there , in its quiet old niche, about a hundred yards from the 
road, stood my old house, exactly the same in shape and 
shade, and with the same lawn, fences, side-road or approach, 
and barn, as sixty years before. 

" We got out and walked up the carriage-way to the 
house, and I recalled to William, as well as time would allow 
me, my early goings in and out of that house, my way across 
two fields to the parson's, Mr. Fisk, to whom I recited my 
Greek and Latin, the path over one of the fields, now ob- 
structed by a large church, over the other by three or more 
villas and their appurtenances, shutting out the parson's 
house, if it was still there, and confounding all my memories. 
Everything about me was new, except Polly Cook's house, 
and this seemed to have been preserved in the same old maiden 
dress that its good mistress, the daughter of the former 
minister, the old-time friend of Dr. Spring, had worn in her 
day, and had put upon her mansion before I went to live 
under her eye. 

" We returned to the carriage, and directed the driver 
to walk his horses, while I surveyed malignantly the fine 
villas which I supposed had blotted out Parson Fisk's. Their 
front gardens or lawns were not deep, and then came the new 
houses and their out-houses, and there must have been half a 

272 



1855] MENOTOMY 

dozen of these on the road-side, which made me desperate, as 
one or all were usurpers of that pretty parsonage that to my 
eye was worth them all, and which I could not see in any 
direction. At length, [a turn of the road] shutting in the 
last of these houses, and opening a space of fifty or seventy- 
five feet before another villa or house of the same kind rose 
up, I turned my eye northward, and there in its niche also, 
a hundred yards from the road, stood the identical old par- 
sonage, and the barn and out-houses, all as I had known them, 
and many times overrun them all. For I was familiar, tho' 
a boy, with the master-parson, rode his horse to plough the 
corn, and cut my fingers in reaping his rye, while he was a 
co-worker in the same labours upon the glebe which was 
allotted him, with a scanty salary of one hundred dollars law- 
ful money, in return for the work of his ministry. I passed 
pleasant days in and about that quiet place, and I was de- 
lighted to find how the recalling of them delighted the young- 
est of my children. 

" On the opposite or left side of the road there was in 
my time a range of lots or fields, where the parson grew his 
rye and potatoes, as other people did farther on; and then 
fields, perhaps a hundred and fifty yards, or it may be twice 
that in depth, gently sloped to a bank of fifteen or twenty 
feet in height, at the bottom of which, on its gravelly shore, 
lay Menotomy pond, perhaps a mile in length and half a mile 
in breadth, with an islet or two in it, and one especially, 
covered with pines and other evergreens, nearest to the north- 
ern shore. In these bright waters I used to bathe and fish 
in the summer, and on them I used to skate and fish in the 
winter, — fish through a hole in the ice, with a device that 
would tell me when I had hooked, tho' I was skating fifty 
yards away from it. And there we now caught glimpses of 
the lake, through the intervals between the villas or country 

18 273 



HORACE BINNEY [JEt. 75 

houses which occupied the fields and banks for three-quarters 
of a mile, and saw distinctly that pretty pine islet, between 
which and the shore I caught that memorable six-pound 
pike. 

" The whole scene was changed enough to make it en- 
tirely different, and there were enough of the natural features 
remaining to make it the same, to me. The day was bright, 
the air cool and refreshing, the waters clear and rippling to 
the breeze, the villas and houses well formed, nicely painted, 
the lawns closely shaven, the flowers exhibiting their forms 
and exhaling their odours, and my delight, even amid the 
change, can hardly be expressed. Had I been alone, I should 
have been melancholy; with my companion, I was perhaps 
less sentimental than he was. 

" We pursued the back road to Watertown, shutting in 
the western end of Menotomy Pond, and then meeting more 
and more houses, barns, and enclosures which my memory 
called up, and with so much accuracy that I was able even to 
point out the very spot where my ignorant young teeth had 
fleshed the skin of a green walnut, to get at the nut, and set 
my whole mouth on fire. The tree had been removed, and 
the burning too, from eye and taste, but the brain had pre- 
served both impressions." 

Dr. Spring's descendants had parted with the house at 
Watertown, so Mr. Binney did not enter it. " The place," 
he wrote, " has all its former rural beauties about it, — the 
prospect over the adjacent country the same; the fields, for 
nearly half a mile on each side and two miles in front, the 
same. Is it only when we are old that we cling to these old 
friends, — the fields, the trees that have known us when we 
were young, the houses of our youth, the abodes of dear 
friends that have left us, the memories of what they said to 
us and did for us? And do we, when young, pass them 

274 



1855] HULL 

away to strangers, content to forget and be forgotten by 
them? To an old man like myself nothing can be more 
strange. I declare with entire sincerity that if that place 
were at this time within reach of me, I would not let a day 
pass without endeavouring to possess it; and, still farther 
removed from it than I am, my children I am sure would 
thank me for acquiring it, and would hold it, I trust, as long 
as they could hold anything." 

The next day was devoted to Hull. " I approached Hull 
with some misgivings. I expected, from what I had heard, 
to meet a little dilapidated old fishing-village, smelling per- 
haps of New England rum and fishing-smacks, with half a 
dozen taverns and a few trumpery shops, and the sashes 
stuffed in many places with old petticoats, as I had once seen 
at Marblehead. I know not how I got the idea that it was 
a noisy and dirty place, full of politics and chatter, with only 
half a dozen voters, and that it was a lamentably shabby place 
for a gentleman to have a grandfather and great-grandfather 
born in, and for the great-great-Scotch-English emigrant 
from whom the rest had proceeded to sit down in and breed 
up a posterity. I certainly somehow got the notion that 
though Deacon John Binney, my great-grandfather, was 
some pumpkins, having not only been the head layman of 
his church, but when his ten children had all grown up and 
left him, courageously and with determination aforethought 
married at the age of seventy-six a second wife, and rode up 
around the square-necked peninsula of Nantasket on horse- 
back to Boston one day, and carried his wife down on a pillion 
the next, some thirty miles each way, — that though this 
deacon was worthy to be the great-grandfather of a very 
great man and a still greater churchman, rather of the high 
order, yet that if he and his Hull forefathers were not small 
potatoes, they had been raised in a very small patch. And 

275 






HORACE BINNEY [Mt.75 

so much was undoubtedly true. But I also thought that it 
was a sandy and rather disagreeable patch, not much to be 
spoken about; and that it had been levelled down, and 
trampled down with fishermen's boots or bare feet, and had 
for this and like reasons a rather unsavoury smell. And it 
was with these presentiments that I approached the place. I 
rather think that I am indebted for them to some newspaper 
squibs let off against the great town of Hull and its seven 
voters, and rather more to some twists and turns of the nose 
when some of my Boston relations spoke of it. I was, how- 
ever, determined to face the worst of it ; and as I knew that 
I was coming to nothing myself, I meant, if it was so, to 
have the comfort of seeing that I had come from nothing 
in the beginning. Both are very likely to be true, with 
nothing in either the beginning or the ending to be ashamed 
of. It is the case with a great many of us, whatever we may 
think of ourselves or our ancestors. . . . 

" Between [two low hills], on which there were trees, and 
enclosing fences, lay the quiet and very peculiar place we 
were to visit. We entered it on the eastern side, taking a 
very quiet and private road or street at the foot of the 
eastern hill, as it was on that road that the telegraph agent 
said we should find the graveyard. It was a beautiful morn- 
ing, and this may have assisted the scene. The houses on 
each side, and well on to the middle of the space between 
the two hills or buttresses of the hamlet, had generally an 
open space before them, as well as at the side and beyond, 
with trees and small orchards, or plots for grass, potatoes, 
and the like. There were no buildings behind the front range, 
extending up the hill. The whole hill-side had grass or grain 
and trees, I think. All the houses were in respectable repair, 
of moderate size, neither very old nor very new. Towards the 
interior there were newer buildings, and one quite large and 

276 



1855] HULL 

commodious, newly painted but of plain architecture, with 
good lawns, trees, grass, and some arable ground in rye grain 
or Indian corn. . . . 

' We soon entered the graveyard; which was on a slope 
of the same eastern elevation, and at the very end of the town 
plot, which is nearly a round one, and closes at this point to a 
neck or isthmus, which drops a little and leads off to another 
part of what I have called the squash neck. Hull might 
very well be compared to a star port at the end of a breast- 
work. 

" We rushed, of course, to the stones of the graves that 
were nearest, for our time was nearly out, and we had to 
go back to our pier for the returning boat. Among the very 
first that we examined were several with the name of Binney. 
We had no time to copy inscriptions, scarcely to read them. 
There was one of a Molly Binney. Molly was the name by 
which my sister Mary, Mrs. Sargent, was called until she 
was a woman. Polly was the name by which, when I was 
a boy, I heard my mother called. Though a common substi- 
tute for the name of Mary in former times, the letters went 
thro' my heart. My brother John once said, when his younger 
sister by two years revealed one of his peccadilloes to my 
mother, and she reproved him, ' Molly, you know, is a simple 
child.' Another was a Reverend Spencer Binney, I think, 
and there were others. They were, however, comparatively 
modern, as late as 1810. The more distant ones, of which 
there were only a few, we had no time to examine. I hope 
my son may again visit the spot. It is more than one hun- 
dred years since my father was born in Boston, where my 
grandfather had resided several years, and, as I have been 
told, in Milk street, adjoining Mr. Eben Parsons, and near 
the Old South. No gravestone of his progenitors probably 
is extant; but I would give a great deal to find some me- 

277 



HORACE BINNEY [JEt. 75 

morial of the valiant old deacon; and I hope my son may 
look for it. 7 

" We returned rapidly, now taking the western road or 
street at the front of the western hill. (N. B. — I have 
called them western and eastern, when they may be really 
anything else. By eastern I mean towards the ocean, by 
the western, towards the interior bay.) We again passed 
the town-house and the pond, and looked around and through 
the interior of the town. We saw half a dozen men, two 
or three in a group in one instance, who seemed to be resting 
from their labours, and more occupied with looking at us, 
and noting our quick strides to and from the graveyard, 
than with anything else. We saw no tavern, smelt no rum, 
beheld no petticoats in the window-sashes, saw no fisherman's 
boots, nor yet any bare feet. It had no bad odours, no bad 
sights, there were no appearances of decay, none I must 
also say of business or what is called life. It was, in fine, 
a rural hamlet or dell, pleasant eno' to the eye, and beauti- 
fully shut in on two sides by the rising grounds I have 
described. How the people live, or support themselves, I 
do not know; they may cultivate outlying land beyond the 
graveyard. They may have other ways enough by the 
neighbourhood of Boston. The men have some reputation 
for shrewdness, at least in politics, for the saying in regard 
to elections is, ' As goes Hull, so goes the State.' But leaving 
all this to future inquiry, and my curiosity on this head is 
now greater than it was before, I must say that I never 
saw a place that I should have less objection to be born in 
myself, than Hull. Had I been dropt into it from a bal- 



7 Note by Mr. Binney: "A few years ago I contributed to the erection of a 
monument stone over the ascertained remains of Deacon John Binney. This was 
at the instance of Charles J. F. Binney, of Boston, a descendant of Amos, the 
brother of my grandfather. July 9, 1868." 

278 



1855] HULL 

loon, I should have said, ' I have got into a sort of Shaker 
village, not quite so thriving and regular and well to do as 
Lebanon.' I might have doubted of this after I had not 
been able to find a church, and certainly there was no steeple 
in the town, not even on the town-house. I should, at all 
events, have said that I had never before seen a town like 
it, and there are reasons enough for its being as it is. No 
one passes through it to anything else. No one goes from 
it to anything else, except by water, or perhaps to bring 
back a wife upon a pillion. It is entirely nondescript among 
municipalities; and now that I have seen it, I am quite 
glad that my first paternal ancestor was born there. I have 
no doubt he was autochthonous, and my lineage is as good 
as that of any other son of the earth. 

" On our return to the hotel nearest the pier, I found 
that I knew the keeper of it, Ripley. He used to keep the 
Warrener at Springfield, and as he some years before told 
me that two maiden ladies of my name lived in Hull, and 
in what he called the Old Binney House, I asked if they 
or any of the name were still in the town, and he said that 
he did not know that there was any one of the name now 
living there. Yet those of the name have lived there nearly 
two hundred years. I possess extracts from the records from 
the time of John, the father of Deacon John, who was 
residing there with his wife Mercy in 1680. What that 
Old Binney House was, and where it is, I had not time to 
inquire. Certainly I will never marry a second wife before 
I have inquired a little further on the spot about the Old 
House and Deacon John. 

" I shall make no comments upon either scene of our 
two days' visit. The marvel constantly before me during 
the last was that I could have lived for five years within a 
two hours' sail of the birthplace of my ancestors, and yet 

279 



HORACE BINNEY [Mt. 74-75 

never before visited it, and scarcely heard of their existence 
in it. My father's early death perhaps accounts for it; and 
I am glad that my own prolonged life has enabled me to 
supply this chasm to my children." 

Mr. Binney's opinion of the suspension of Bishop Onder- 
donk in 1844 has already been referred to. In 1847 a canon 
was adopted providing that every sentence of suspension 
" shall specify on what terms, or at what time, said penalty 
shall cease." As this canon forbade, for the future, any 
sentence of indefinite suspension, a termination of Bishop 
Onderdonk's suspension was naturally to be expected; but 
his appeal for a remission of the sentence in 1847, and that 
of the Diocese in 1850, were unheeded by the House of 
Bishops, and even in 1853 a resolution of remission was 
defeated, though only by a single vote. 

Under all ordinary circumstances Mr. Binney, as a lay- 
man, would not have undertaken to publicly criticise any 
action of the House of Bishops, but he felt that its main- 
tenance of a sentence, which the Convention had provided 
should never again be imposed in any case, was an act of 
such harshness and severity as demanded a protest from 
those who had the well-being of the Church at heart. Accord- 
ingly he published a pamphlet containing a full statement 
of the case of Bishop Onderdonk. Though he saw fit to 
use the nom de plume, "A Member of the Church," his 
authorship was probably an open secret. Bishop Meade, 
and afterwards Bishop Hopkins, having undertaken a 
defence of the action of the House of Bishops, Mr. Binney 
published two pamphlets in 1854 in relation to the particular 
case, and to the law of the Church of England in regard 
to suspension, and in 1855 two more pamphlets on the law 
of suspension in the Primitive Church, demonstrating from 
the authorities that such a punishment as indefinite suspen- 

280 



1854-55] BISHOP ONDERDONK'S CASE 

sion of a priest or a bishop from his office, a suspension 
unlimited by time or conditions, was wholly unprecedented. 
He objected to the sentence, however, as much on the score 
of severity as on that of illegality. 

I hold it to be sharper and more severe than any other sentence 
that the bishops can inflict. But for this sentence, I know of nothing 
that would have induced me to put pen to paper in this unhappy 
controversy. But I can never surrender my opposition to this while 
reason and life remain to me. I would not trust the exercise of the 
power of inflicting such a sentence to any living creature. I would 
not trust myself with it, nor those whom I most venerate and love. 
I would not impose such a sentence on any man for any offence, even 
for the greatest. It breaks the heart of the man upon whom it is 
imposed, and, unless he has virtue enough to require no punishment, 
makes him desperate. To certainty of the worst kind he can become 
reconciled ; to uncertainty, never, from the very constitution of nature 
which God has given to him. It converts the judge from minister of 
the law into irresponsible arbiter. Instead of pronouncing as his 
sentence the whole voice of the law, and inflicting the penalty as due 
ex dcbito justitia, between the defendant and the public, it retains in 
the bosom of the judge just so mucli unpronounced as will leave him 
to be the dispenser of favours. Look at this kind of sentence as you 
may, with or without reference to anything that has ever occurred, 
every reflecting person must see that this is its necessary effect upon 
both judge and defendant, and if the law of all free countries con- 
demn it as intolerable by freemen, how can it be thought profitable 
or tolerable in the Church? In my humble judgment the sentence 
should be expunged, without reference to anything that is past, it 
not being morally possible that any evils can result from such an 
extinction at all comparable to the evils of continuing it. 8 

It can hardly be doubted that the clear and calm state- 
ments of these pamphlets had their effect in changing the 

8 Reply to Bishop Meade's second pamphlet, p. 20. 
281 



HORACE BINNEY [,Et. 78 

vote of fourteen to thirteen against remission of the sentence 
in 1853, to a vote of twenty -one to eight in favor of remis- 
sion in 1856, when, to Mr. Binney's deep satisfaction, all 
Bishop Onderdonk's rights of public ministration were 
restored to him. 

The year 1858 was for Mr. Binney the beginning of a 
long period of anxiety and distress, which was destined to 
end only in the deeper sorrow of bereavement. During this 
year his wife, just three years his junior, and who had up to 
this time almost equalled him in health and strength, was 
attacked by rheumatic gout, which, gradually increasing, 
made her more and more of a cripple until she was confined 
entirely to her room. Her great patience and cheerfulness, 
maintained even under very severe pain, undoubtedly helped 
her husband to bear up as he could not have done otherwise ; 
but the ever present consciousness of her suffering neces- 
sarily clouded the happiness of his life from this time on. 
Prior to this, since he parted with his house in Burlington, 
in 1846, they had been in the habit of spending a part of 
each summer in the neighbourhood of Newport, or elsewhere 
to the north of Philadelphia, but after his wife's illness 
began Mr. Binney scarcely ever left the city, except for 
visits at the country place of his son-in-law, Mr. Mont- 
gomery, where Mrs. Binney was usually taken in mid- 
summer. 

During this year he wrote and published his short bio- 
graphical sketch of Judge Bushrod Washington, whom he 
had known well for thirty years until the judge's death in 
1829, and he also wrote the sketches of William Lewis, 
Edward Tilghman, and Jared Ingersoll, which appeared 
the following April under the title of " The Leaders of the 
Old Bar of Philadelphia," they having been the seniors, 
as well as the most prominent men, at the time that Mr. 

282 



1858] LEADERS OF THE OLD BAR 

Binney entered the profession himself. These sketches are 
probably the most finished of all his writings, casting a 
delightful glow, as of the genial sunshine of a peaceful 
summer afternoon, upon the eminent men of those days, 
which, though full of action, seem yet to have been days of 
quiet and dignity, a century and more ago, before modern 
hurry and rush had turned law into a trade and a lawyer's 
chambers into a sort of factory. He had not only seen 
all three of the " leaders" repeatedly in court, but had been 
fairly well acquainted with them, especially with Mr. Inger- 
soll; and by 1858 the personal recollection of them had 
become, as Mr. Binney put it, " pretty much an octogenarian 
perquisite of my own." He felt that Philadelphia had not 
dealt fairly with these great lawyers in preserving no me- 
morial of them, and that the profession owed them a debt, 
which had descended upon him as the longest liver, and 
which, as far as any written memorial went, he alone could 
pay. It was to prevent their names from sinking into "an 
undeserved oblivion that these sketches were written, and 
the fact that they are still read and valued shows that they 
were not writen in vain. 

There was also another motive for the sketches. Of all 
the social and political changes which had followed the down- 
fall of Federalism, the almost universal destruction of the 
" good behaviour" tenure of the judiciary of the several 
States was the one about which Mr. Binney had felt most 
keenly. When, a few years later, came the attempt to 
break up the Union itself, that was, in his eyes, the only 
greater crime against liberty and civilization that he had 
witnessed, and he traced both offences to the same source. 
The excellence of the " old bar" had been, he held, closely 
connected with the " good behaviour" tenure of the judges 
before whom that bar had practised, and he wished, in 

283 



HORACE BINNEY [^Et. 79 

sketching the careers and characters of these " examples 
from the old ' good behaviour' bar of Philadelphia," to put 
into permanent form a protest against the demoralizing 
changes which had taken place in the judiciary of nearly all 
the States, and against any extension of that change to the 
Federal judiciary. Whether his words of warning have had 
any practical effect or not, they are at least of a character 
to make men stop and think. 

The charm of these sketches is probably due to the fact 
that they are a personal retrospect, and not a work of bio- 
graphical research. Apropos of this, Sir John Coleridge 
wrote to Mr. Binney's son as follows : 

I must say sincerely that your father has been happy in his 
design, and not less in the way of dealing with it. His three heroes 
seem to have been remarkable men in their generation, and I can 
enter into the pleasure which } T our best men of the present day must 
receive from having an authentic record of them and a faithful sketch 
of their day presented by such a man, so remarkable and eminent in 
himself, who speaks from personal knowledge of both generations 
and periods, and who is so perfectly competent to understand and 
estimate in all particulars and respects the men he speaks of, and the 
two systems, as I may almost call them. 

Tm $' rjdrj Suo p.ev yeveau p.ip6najv dv&pcurtwv 
'Efftiatf', <n <>l itpoadsv aua rpdiftv rjds yevovro 
*Ev Ihv>ffuA<favi7j, fi£Ta de TpnaToidiv avaaaet. 

Excuse my Homeric outburst. It smells perhaps of my 
Heath's Court employment, but it seems to me very suitable to your 
honoured father to compare him to Nestor, except, indeed, that I 
don't suppose he overflows quite as much in talk as that vener- 
able chief (leader would have been a better word) appears to have 
done. 

The Homeric allusion brought the following reply: 

284 



1859] WASHINGTON'S FAREWELL ADDRESS 

It cannot but be a pleasure to you to see one American willing 
to breast the democratic tide which surges round him, and " stemming 
it with heart of controversy," not seeking in the least the approval 
of the present day, but content to leave on record after him words 
of warning which may one day find a hearing from his countrymen. 
And in truth my father's position becomes more remarkable with 
every passing year. Your comparison of him to Nestor does not 
strike his friends here as extravagant, but I think very few, if any, 
of them could have subdued the unmanageable name of his State to 
the demands of the Greek hexameter as skilfully as you have done 
at the expense of noble Pylos. 

In September, 1859, Mr. Binney published his " Inquiry 
into the Formation of Washington's Farewell Address." 
He had been led to write on this subject in consequence of 
his friendship for Mr. John C. Hamilton of New York, 
whose acquaintance he had made at Saratoga some years 
before, and in whose publications of the writings of his 
great father Mr. Binney took a warm interest. From De- 
cember, 1857, when the first volume of Mr. Hamilton's final 
work 9 appeared, frequent letters passed between them until 
within three months of Mr. Binney's death. To aid in 
placing Alexander Hamilton before the world in his true 
position as the greatest of American statesmen was an object 
dear to Mr. Binney's heart, and not the less so that it neces- 
sarily involved making plain the intimate relations existing 
between Washington and Hamilton, and their complete 
agreement and thorough co-operation in all affairs of state. 
Hamilton's connection with the Farewell Address had been 
the subject of a good deal of controversy, and it was neces- 
sary to settle it, once for all, as completely as the evidence 



• " History of the Republic of the United States of America, as traced in 
the writings of Alexander Hamilton and of his Contemporaries," by John C. 
Hamilton, 7 vols., New York, 1857-64. 

285 



HORACE BINNEY [JEt. 79 

permitted. Mr. Binney felt that Mr. Sparks, the editor of 
Washington's writings, had not treated the question fairly, 
and that, in view of the prejudice which existed on the sub- 
ject, Hamilton's son would be at a disadvantage in attempt- 
ing to present the truth, which was that the Address, while 
containing exclusively Washington's own views, the views 
which he had desired to express at that particular time, was, 
in its actual form, and to a great extent in its language, the 
work of Hamilton. Mr. Binney therefore, being wholly 
unconnected with the Hamilton family, took the task upon 
himself, regarding it rather as the discharge of a debt than 
as in any sense a favour to Mr. Hamilton. 

I owe a vast debt to your father. I can trace all the light I 
have in regard to government to that source, received at that period 
of my life when what is sown, whether of good or evil, grows and 
spreads vigorously ; and with this light came so much at least of 
sympathy with his honour, pure faith, manfulness, and all the stand- 
ards by which he upheld them, that, beyond any principles of public 
government, I cannot but think I was permanently influenced by it. 
You do not owe me a tithe of what I owe to his public life and works ; 
and all that I have endeavoured to pay you has not been a penny in 
the pound of my debt to him. 10 

The fact that Mr. Binney should have " turned to a 
purely historical and literary question, based upon a careful 
comparison of documentary evidence," at a time of the 
utmost political unrest, when the Union itself seemed almost 
ready to fall apart, has been called " a notable instance of 
the mental loneliness of a legal hermit." The writer " of 
those words cannot have been in possession of all the facts. 
It was just because Mr. Binney realized fully the threaten- 

10 Letter to J. C. Hamilton, Esq., April 3, 1863. 

u Hampton L. Carson, Esq., in Philadelphia Times, July 31, 1892. 

286 



1859] WASHINGTON'S FAREWELL ADDRESS 

ing state of the country that he turned to the words of Wash- 
ington and Hamilton as to a chart showing the only safe 
course among rocks, shoals, and quicksands. To make that 
chart, the conditions under which it was prepared, and the 
men who prepared it better known was a most timely under- 
taking ; none the less so that, as we see things now, no human 
undertaking could apparently have prevented the inevitable 
conflict. 

In this essay Mr. Binney examined critically all the 
papers bearing upon the question; and the circumstances 
under which they had been written, and reached the follow- 
ing conclusion: 

Washington was undoubtedly the original designer of the 
Farewell Address. . . . The fundamental thoughts and principles 
were his ; but he was not the composer or writer of the paper. . . . 

We have explicit authority for regarding the whole man as 
compounded of body, soul, and spirit. The Farewell Address, in a 
lower and figurative sense, is likewise so compounded. If these were 
divisible and distributable, we might, though not with full and exact 
propriety, allot the soul to Washington, and the spirit to Hamilton. 
The elementary body is Washington's also; but Hamilton has devel- 
oped and fashioned it, and he has symmetrically formed and arranged 
the members, to give combined and appropriate action to the whole. 
This would point to an allotment of the soul and elementary body to 
Washington, and of the arranging, developing, and informing spirit 
to Hamilton, the same characteristic which is found in the great 
works he devised for the country, and are still the chart by which his 
department of the government is ruled. 12 

What Mr. Binney meant by the " soul" of the Address 
are the nine wishes for the future of the country, and cer- 



Inquiry, etc., pp. 169-171. 

287 



HORACE BINNEY [Mr. 79 

tain statements immediately accompanying them, of which 
he wrote: 

These are golden truths, a treasure of political wisdom, expe- 
rience, and foresight, which, from the gravity of their tone, the depth 
of their sincerity, their simplicity, and the tenderness as well as 
strength of the concern they manifest for the whole people, make 
them in themselves a Farewell Address, as it were, from a dying father 
to his children. And they are Washington's alone, without sugges- 
tion by anybody, — Madison, Hamilton, or any other friend or ad- 
viser, — drawn from the depth of Washington's own heart, and if the 
whole Farewell Address, as it now stands on record, were decomposed, 
and such parts dispelled as were added to give the paper entrance 
into the minds of States and legislators, and to place it among the 
permanent rules of government, the great residuum would be found 
in these principles, an imperishable legacy to the people. They are 
the soul of the Farewell Address. 13 

Of the next two letters, the first was written while Mr. 
Binney was at work upon his " Inquiry," and the second 
just after it was published. It is clear that his work had 
not tended to make his opinion of Jefferson any more favour- 
able than it was before, but rather the reverse. 

{To the Hon, D. A. White.) 

Philada., May 20, 1859. 

It has delighted me to see your handwriting once more, and 
to feel the pulse of your warm heart. It will beat so while it beats 
at all, and will, I have no doubt, find its beats in unison with the 
measure of another sphere when it stops in this. 

I received the Salem paper, and saw your hand-prints, and 
was of course gratified. But perhaps you don't exactly understand 
me as to this matter of writing and printing. I have written several 



Inquiry, etc., p. 40. 

288 



1859] WASHINGTON'S FAREWELL ADDRESS 

things in the course of my life, some of them in the way of business, 
and some in the way of duty; and these have been pretty much 
records, and I have cared as little about the public reception as if I 
had printed copies of deeds. All other things that I have printed 
have been written from the heart to the heart, — from the heart of a 
sincere man to the hearts of a few I have loved, and I think have 
loved or respected me. Beyond these few I have cared for nothing, 
and I do not get what I want in their praise, but I get it in the 
reminder that they understand me and love me still. I cannot bring 
myself to have the least regard for the praise of the world, for I 
know what it is worth. I suppose I am too proud to be willing to 
divide anything with a crowd, many of whom, and perhaps the most, 
are drivellers. A good book, a book that is worth printing for the 
instruction of the world, is, always excepting primers and catechisms, 
the rarest thing on earth, — a mild day in the Arctic sea ; reason and 
virtue in a democratic mob. I therefore hate book-making and author- 
ship, and never can have anything to do with it. I do not say this 
in regard to what I have written, for that is not to be thought of as 
a collection by me or by anybody ; but I say it to clear myself of the 
imputation that, by printing what I write from the heart to the heart, 
I have a secret aspiration to get into the category of authors. I print 
only to carry on my communion with a few externally ; the larger 
communion is only to be carried on by the thoughts of the heart. If 
I could do it through a book that would live, that would be another 
matter; but that is not for me, and, indeed, has been and will be for 
only a very few. . . . 

It would file the mind, my dear White, to write anything about 
Jefferson. I know him thoroughly, have read Randall's book, which 
is as much a fiction by colouring as the history of the island of For- 
mosa and the Formosan language. You truly say that his Ana are 
his best history. I was consulted by Mr. Randolph, in regard to the 
copyright of his grandfather's posthumous works, and took a copy 
of the work, which I regard as one of the most precious in my library. 
If we could get Satan to write a history of his own life and actions, 
and especially some account of his opinions about the Holy Scriptures, 

19 299 



HORACE BIXNEY [JEt. 79 

nobody of common honesty, I think, would want any further evidences 
of Christianity. But still many would quote him, and a few would 
swear by him. I was much struck, however, when in Congress, in 
Jackson's time, in finding, as I thought I did thoroughly, that if he 
was quoted or referred to at all, which was very rarely, the quoter 
never appeared to do it from his own faith, but only because he 
thought somebody else might have it. So I think it is universally 
now in the country. He will, however, become as well known as he 
need to be for his infamous malpractices in regard to Hamilton and 
Washington, by John C. Hamilton's life of his father, now in course 
of publication, — an authentic reliable work, not striking, perhaps, 
in point of style, but perfectly reliable and true, even impartial, for 
impartiality is often the severest truth. 

(To the same.) 

Philada., Oct. 15, 1859. 

I thank you for your most kind and affectionate letter. The 
only regret that came with it, or rather that it produced, was for the 
recent disturbance of your health. What precious souls the precious 
old souls become to us, when God is pleased to spare us to old age. 
You and I have outlived many ; and like the thinning ranks in a 
battle, I seem to come nearer to you every day, as others fall. I am 
almost literally without a comrade here, in the old file; but I thank 
God that He still preserves one or two in other parts of the field. We 
shall come together at last, and I trust lie in peace. 

I send you by express a copy of the " Inquiry," which I will 
thank you to send with my respects to Dr. Peabody. He will not, I 
trust, place me in the category of authors, asking for fame or dis- 
tinction. I wrote that paper with the single purpose of saving Gen- 
eral Hamilton's son from going extensively, or perhaps at all, into 
the question in his next volume. A son cannot do this as a third 
person might, and there are points enough in it on which any one 
might impale himself if he did not keep a good lookout. I am glad 
you think I escaped pretty well. 

I almost believe that Jefferson was a full incarnation of Satan. 

290 



1859] WASHINGTON'S FAREWELL ADDRESS 

It has been in the course of writing this paper that I have come to 
learn, almost to know, that by or through his agents, access was had 
to some of Washington's papers, and that history has suffered by it. 
I think Mr. Sparks's paper on the Farewell Address was defective ; 
but I shall never cease to be thankful to him for preserving copies 
of Washington's drafts. It is much to be feared that the originals 
have disappeared. That draft and Washington's letters of 15 May 
and 25 August, 1796, are immensely important documents for the 
history of that day. Mr. Randall has tried, I think, to embalm Jef- 
ferson with the myrrh and cassia of Washington's good opinion to 
the end; but these letters explode the pretension thoroughly, and 
the draft indignantly. 



291 



HORACE BINNEY [jEt. 79 



XII 

THE EVE OF THE CIVIL WAR 

(1859-1861) 

DURING most of his life Mr. Binney kept up a large 
correspondence, and to its close, though his " love 
of letter-writing, once a very sincere, not to say a 
passionate one," had gone from him, he still had a few 
correspondents in whose letters he took keen pleasure. In 
writing to his intimates, he expressed himself very frankly 
about people and events; but, being averse to giving pain, 
and realizing that letters often expressed opinions which the 
writer might afterwards change, he was opposed to the 
preservation of private letters and from time to time de- 
stroyed those which he had received, as well as such of his 
own letters as were returned to him. Hence apparently not 
a single letter written to him is still in existence, and, while 
many which he himself wrote remain, most of them were 
written in the last sixteen years of his life. For that period 
they furnished the chief record, and the more important ones 
are given in the pages that follow. 

When Mr. Binney's oldest son visited Europe in 1854, 
he made the acquaintance of Sir John Taylor Coleridge 
(then, and until his retirement in 1858, a justice of the 
Queen's Bench) and his son, afterwards Lord Chief Justice 
of England, an acquaintance which rapidly developed into 
very warm friendship. After his return he sent Sir John 
copies of some of his father's writings. Their perusal led Sir 
John to write to Mr. Binney himself, and gradually a cor- 

292 



J 



J 



1859] CORRESPONDENCE 

respondence sprang up between them, ceasing only at Mr. 
Binney's death. Considering that the writers had never 
actually met, this correspondence was remarkably free from 
formality and reserve ; but Mr. Binney was on his part pre- 
disposed to friendship with the judge, remembering very 
clearly the refined, thoughtful face and judicial bearing, 
which had strongly impressed him when he saw Coleridge 
in his place on the bench twenty years before. The first of 
the following letters refers to Sir John's lecture on " My 
Recollections of the Circuit," which was afterwards pub- 
lished in the American Law Register for March, 1861. 

(To Sir J. T.Coleridge.) 

Philadelphia, 16 Nov., 1859. 

I thank you for your most pleasing lecture, and for the little 
note which came with it. The picture in each was most agreeable. 
I need not be an aruspex to see that it is a good sign for England 
to have the writer of such things in her Privy Council. 

I was not as well prepared for Sir W. Follett as for the others 
you describe, except Richardson, who was unknown to me; but Fol- 
lett's faculties and dispositions are so well discriminated, that I 
think I understand him now. His must have been a genius for the 
open work of the bar, as distinguished from the chambers, and per- 
haps from the bench. I regret that I did not see or hear him when 
I was in London. I was informed by an acquaintance, one day, that 
Norris vs. Lord Melbourne was on, and hoped the next morning to 
go over and take my chance of bringing away a part of him; but 
when I came down to my breakfast, by no means a late one, I found 
the whole trial, verdict and all, upon the table. However some may 
sleep in that world, the judge certainly did not sleep over his work. 
Such faculties as Sir W. Follett's are not often the best for the bench ; 
but they gather an immense harvest of local fame, and " consols," at 
the bar. 

Much as I should have been delighted to go a circuit as an 

293 



HORACE BINNEY [JEt. 79-80 

observer, I have probably been more so in my chair, in reading your 
summary of several of them. I suppose some change must have come 
over them within thirty years, in state perhaps, but I hope not in 
the graceful unreserve of the bench with the bar, at proper seasons. 
We had a good deal more of both formerly than we have now. The 
popular election of judges is a horrible leveller; and both the bench 
and the bar seem to become more and more afraid of being distin- 
guished as a corps. Pray hold on to your good old fashions as long 
as you can, even to the wigs, now you've got them. It is a wretched 
folly to part with any of the symbols, which are pretty much all that 
would deter many from ruining the substance. I wish England well 
for her own sake, but for ours fully as much. In the law, and in the 
administration of the law, we look to her constantly, and even go far 
beyond her when she sets an example of discarding anything which 
has been established. There is our danger, and yours also. 

How much I was gratified by what you say of trial by judge 
and jury. A prejudice has been growing against trial by jury, in 
all parts of our country, where either the predominance of the popu- 
lar will is great, or the courts are in the practice of leaving the evi- 
dence to the jury without a charge, and stating the law to them in 
an abstract or hypothetical way. This is the general course to the 
south of Pennsylvania. But we follow the English practice with 
great advantage, and have little thought of exchanging jury trial 
for anything else. It is only, however, as trial by judge and jury 
that it has its great value ; and in looking at other countries, I incline 
to regard this as a special blessing of Heaven to the English race. 

Pray send me again, my dear sir, with the consent of the Privy 
Council, such another lecture and such another note, telling me of the 
good old things of the bar and of the good new things also, when 
grandchildren are playing " hide and seek" among the bushes, and 
the grandfather in his study is working out " seek and shew" for the 
profit and refreshment of both ages. Your speech at Exeter on the 
subject of the Oxford Examinations goes demonstrably to the true 
foundation, both in science and in letters. The whole difference 
between finished and unfinished men depends upon the depths to which 



1859-60] CORRESPONDENCE 

boys are made to go in the elements between ten and eighteen. What 
is thoroughly mastered then is never lost, and no labour of the intel- 
lect afterwards can supply its place. Your uncle's insistent recom- 
mendation of the -flat's and ye , s is the true way. I was not as well 
birched into it myself as I ought to have been, but I endeavoured to 
do better by my boys. . . . 

(To J. C. Hamilton, Esq.) 

Philada., 26 Jan., 1860. 

. . . There are some remarks upon the [Farewell Address] 
Inquiry which you may not meet, as they are in a Massachusetts 
quarterly journal, called the Christian Examiner, for January, 1860. 
The paper is equally strong as the North American [Review] 1 in 
adopting my conclusions, but is stronger than any paper I have read 
in at least one of its expressions in regard to your father, whom it 
describes as, at the date of the Farewell Address, " the greatest man 
then living in America." These things may bring the readers of the 
day to a better acquaintance with your father, through your book 
and his writings. I regard him myself as the very first man of the 
age, and, indeed, of any age, in the supremacy of his intellect, upon 
all questions concerning practical government and policy; and in 
this relation I agree with the writer in the Examiner. 

You may have seen the enclosed from the National Intelli- 
gencer. It is a poor thing, because while it affects to value the work, 2 
it really undervalues it by your maniere de voir. It is your manner 
of presenting, and not your manner of seeing, that gives the work 
its character; for when you present, others, if they have eyes, must 
see as you do — unless they are Virginians. And here is the difficulty 
with the National Intelligencer. They are so near to that atmosphere 
as to imbibe it in a strong mixture with other air, and the mass of 
their readers is altogether living in it; and their paper shows their 

1 The issue of January, 1860, containing a review of the Inquiry and of the 
Leaders of the Old Bar. 

2 Mr. Hamilton's History of the Republic, the fifth volume of which had 
recently appeared. 

295 



HORACE BINNEY [Mt. 80 

consciousness of it. I know little of S[eaton], but I like G[ales], 
who is thoroughly reclaimed from Jefferson, but not so thoroughly 
from Madison. When he is within the range of the Virginia influ- 
ence his paper is feeble, but it is never so strong as when it is showing 
up the consequences of Democratic excesses. . . . 

The only paper I wrote upon Chief Justice Marshall was the 
eulogy I read at the request of the city in 1836. I thought you pos- 
sessed that ; but if you do not, I cannot help you, and I believe it is 
out of print. The Supreme Court have tried, in the Dred Scott case, 
to put him out of print, so as never to have another edition of him; 
but I hope it will never be the doctrine of this nation that whatever 
the Supreme Court shall from time to time, backward and forward, 
say is our Constitution, that it is. When that Court has once settled 
its meaning, that we must abide by, or we can abide by nothing. 

From 1860 to 1872 Mr. Binney's most frequent corre- 
spondent was Dr. Francis Lieber, a Prussian by birth, who as 
a young boy had fought and been wounded at Waterloo, 
and whose liberal views had compelled him to seek an asylum 
in the United States in 1827. He had first met Mr. Binney 
in Washington in 1833. He resided for some time in the 
South, but ultimately became Professor of History and 
Political Science in Columbia College. The correspondence 
ceased only at Dr. Lieber's death. 

(To Dr. Lieber.) 

Philada., Feb. 8, 1860. 
. . . The safer principle to adopt in regard to the Dred Scott 
case, I think, is, that when the Constitution has been interpreted on 
a contested point, by the Supreme Court, and that interpretation 
practically followed for more than half a century, no contrary decision 
by the same court can have the least authority whatever. This is 
the specific rule that I would apply. 

There is no Constitution without it. If the Dred Scott case is 

296 



1860] DRED SCOTT CASE 

followed, we have no unchanging Constitution whatever. It will be 
" alia lex Roma;, alia Athenis, alia nunc, alia posthac." Cicero had 
no notion of such a law. 

They talk of overruling the former decisions and practice. 
Whoever heard of such a thing being done by the same tribunal? 
How can it overrule its own body, confirmed by the decisions of Presi- 
dents over and over again, and by the laws of the Representatives 
of the people? The judges have done an awful thing, as I have 
already told you ; and my word for it, it will not stand one moment 
if this government stands. You know how the Amphictyonic Council 
fell when it went into politics and decided corruptly between Sparta 
and Thebes. So it will be here, unless the Dred Scott case is brushed 
away. . . . 

(To J. C. Hamilton, Esq.) 

Philada., Feb. 8, 1860. 
... I am glad the sixth [volume] is going to press, and 
shall look eagerly for it. You apprehend that it may be too full of 
the British treaty ; but I regard your father's writings on that sub- 
ject as his capo a" opera of statesmanship ; and it is the defence of 
that treaty which shows his finish as a patriot as well as a politician; 
for it was he who should have made it, and would, if he had been sent, 
have made a better. He was the man, I think, who would personally 
have so satisfied the British Minister of the necessity and advantage 
of keeping the British and American governments together as a per- 
petual buttress against both despotism and licentiousness, that the 
treaty would have provided against all the causes which in the change 
of parties produced the war of 1812. The British contributed more 
to that war than they ought to have done; and they would have 
avoided this if your father had thoroughly removed causes of jealousy, 
as I believe he would have done much better than Jay. How we should 
have fared in his absence is the only question. His great papers on 
the subject of that treaty are those which first taught me the magni- 
tude of his powers and resources. How long will you be in press 
with the sixth? I count the days. . . . 

297 



HORACE BINNEY [Mt. 80 

(To Dr. Lieber.) 

Philada., Feb. 18, 1860. 
. . . You never wrote a more incontestable truth than that 
generally democracy has nothing to do with liberty. The first movers 
of the Democratic party in this country may have thought that they 
were opposing monarchical tendencies, but it is more charitable than 
sensible to think so; and so far they may have had the perpetuation 
of liberty in view. But that fancy, whether real or simulated, soon 
passed away ; and from the time the Democratic party attained power, 
which it has held continuously since, notwithstanding occasional losses 
of the Presidency, its aspiration has been for power; and liberty of 
action, of speech, of thought, has every day been more and more 
tramelled or impaired, until the word, in the general apprehension 
of the people, means power, and nothing else ; and that is the reason 
why so many swell its ranks. It is not power in the government, nor 
in the law, nor wholly in the party ; but it is power in the individuals 
who form the party; power to partake of the party strength, to 
seize on personal profits and advantages, to suppress or supersede 
those who are their rivals with the better claims of integrity, knowl- 
edge, and deference for the principles of liberty. You never said a 
truer word, nor was it ever more strikingly exemplified than in this 
land. For sixty years I have seen this accursed love of power, de- 
bauching the mature and the young, until at length a large portion 
of the anti-Democratic party has been more than half spoiled by it. 
Look at what it has done by the agency or consent of nearly all 
parties, in the overthrow of judicial tenure, in stripping the judges 
of power to appoint their own clerks or prothonotaries, in bringing 
every office down to the individual vote and claim of every man, in 
lifting up every man of every sort to clutch at every office or position 
that will increase his own power, and to calumniate and revile every 
one not of his party as an enemy of liberty. I am sick of it, and 
don't wonder that you are sad. I cannot ask you even to be of good 
courage, except upon the consideration, now very present with me, 
that life is but a journey, and that every man should try to do his 

298 



1860] READING THE FAREWELL ADDRESS 

best in it, seeing that he is to account for what he has done at his 
journey's end. 

I cannot write upon the Dred Scott case. ... I doubt whether 
any man's opinion about it as a constitutional result is wanted or 
ever will be wanted. It is a political or party result. Nobody who 
reasons upon legal principles can want anything after Judge Curtis's 
opinion; and that opinion is just as safe for the South as for the 
North. The opinion of Mr. Taney, on the contrary, if there shall 
permanently remain anything upon which it can act, will divide this 
country into irreconcilable sections, while it dishonours the men of the 
Revolution, the men of the Constitution, and the Constitution itself. 
Popular sovereignty, in Mr. Douglas's meaning, is not a nonsense 
of the highest altitude while we have the Dred Scott logic of Mr. 
Taney to compare it with. Douglas is in the heavens, but not in the 
seventh heaven of reasoning lunatics. 

There, again, I am getting a little lunatic myself, so farewell. 

One result of Mr. Binney's book on the Farewell Ad- 
dress was a request to read the Address before the Councils 
of Philadelphia on the next anniversary of Washington's 
birth ; and it was a very gratifying recognition of the value 
of his recent investigations to find a copy of his book upon 
the table, as containing the text from which he was to read. 
The weight of his fourscore years did not affect the firm- 
ness and expression of his voice, and as he read the wise and 
lofty admonitions, every one of which was stamped alike 
upon his memory and his heart, and whose warning notes 
sounded more solemn than ever amidst the threatening mur- 
murs of discord and rebellion, destined soon to be succeeded 
by the clash of arms, he seemed, to quote from a journalist 
of the day, " to have become imbued with the spirit of Wash- 
ington. He looked like Washington" himself. At the end 
of his reading the audience remained in expectant silence, 
and he at length said, " Thus closes the noblest compendium 

299 



HORACE BINNEY [Mt. 80 

of fatherly affection, patriotism, and political wisdom the 
world has ever seen. No words of mine are fit to stand 
beside it." 

(To J. C. Hamilton, Esq.) 

Philada., 16 May, 1860. 
. . . But what shall I say in regard to the portion of Vol. VI. 
which you last sent me? I do not feel like a culprit, for some moral 
perverseness is necessary to constitute that condition; but I feel like 
a stupid, stolid, unthinking boy ; for, having kept the roll in my 
fire-proof with all care until several days after the sixth volume had 
been received and read, I took them from their pigeon-hole, and, just 
as I do with my own proof-sheets after the pamphlet or book has 
been printed, deliberately and consciously put the roll into the fire 
and remained gazing at it until the whole was burned up, that no part 
might go up the chimney unburnt. I know nothing in my life like 
it, except one instance, when old Mrs. Boudinot, the good wife of 
Elias Boudinot, at an oyster-supper in her daughter's house, being 
entirely mastered by a large oyster which refused to yield to her knife, 
I most politely proposed to assist her, took the oyster from her plate, 
went at it, and kept at it for two minutes, while a lady next me talked 
me out of all recollection of the proprietor of the shell, — Mrs. Bou- 
dinot, I understood, looking at me all the time with both her eyes. 
When the parley with the neighbour lady ceased, I resumed my task, 
opened the shell, took a magnificent oyster from it, and, holding it 
under survey for a moment or two on my fork, deliberately raised it 
to my mouth and swallowed it ! ! Mrs. Boudinot's " admirably done," 
and the shout of the whole table of friends, who had taken in the 
whole scene, made very much the same impression upon me as the 
request in your letter to send the roll back. You can't have the shell, 
my dear sir. I swallowed the oyster and calcined the shell. What 
can I do? I verily believe your case is better than Mrs. Boudinot's, 
for you have a better impression; whereas she retained nothing but 
the visual impression of the oyster as it was departing forever from 
her. Will you please to beat me with a cudgel? I wish you could 

300 



1860] WASHINGTON'S FAREWELL ADDRESS 

with all my heart; it would transfer the bruise from my behaviour 
to my bones. But I believe or fear there is no remedy for either you 
or myself. Forgive me. I will do better the next time. . . . 

(To Sir J. T. Coleridge.) 

Philadelphia, 21 May, 1860. 

The Quarterly Review for April arrived here last week, and 
your article, on the Leaders and Farewell Address, has been read with 
great satisfaction by myself, by my wife and children, and by several 
of our friends. The gratification has been universal; and not more, 
nor so much, I must say, from its bearing upon myself than on account 
of the kind feelings and artistic skill of the writer. Little as I antici- 
pated, or, indeed, thought, of any foreign notice when I printed these 
papers, — even apprehensive of it when you informed me of your 
purpose, — I confess that I now feel a very high gratification. It is 
greater than I should have felt if it had been done by any other per- 
son, or in any other tone or manner. It is just the thing in all points 
that I should have desired if I had possessed the sagacity to desire it; 
and it enables me to establish your general rule, that a reviewer never 
satisfies a reviews by averring conscientiously that I am the proving 
exception. 

I concur even in your regret that Washington was not the 
author altogether of the Farewell Address, and have felt that regret 
for many years, though surrounded by a universal conviction among 
reading men that this was not the fact, and by a general indifference 
about it. 

One of the motives of my publication appears plainly enough 
in the preface to it, — to remove an aspersion from Hamilton ; and it 
was personally a very strong one with me. But there was another, 
which I could not have alleged publicly without some appearance of 
vanity or other weakness, and yet I do not hesitate to state it to you. 

My mother's residence, when I left Philadelphia for college, 
was opposite to Washington's on the same street, and it immediately 
adjoined Hamilton's on the same side of the way; and the boyish 
admiration of both these great neighbours went with me to Cam- 

301 



HORACE BINNEY [JEt. 80 

bridge, and increased with me. They were never afterwards sepa- 
rated in my affection and regard ; and when I came to know as I did, 
a few months before I wrote the essay, that the papers which proved 
Hamilton's material agency in the composition of the Farewell Ad- 
dress were, most of them, in print, and that the rest must be in a 
short time, and that thus all the facts could come out, I fancied that 
my affection for both would guide my pen more safely in the distribu- 
tion of the parts than the superior intelligence of another person. 
From a want of this feeling, or from a great inequality of it towards 
the respective parties, other persons had already disfigured the case, 
to the unjust detriment of Hamilton; and I had a private reason for 
apprehending that a bias the other way might result in a similar 
injustice to Washington; and to meet and, as it were, deprive a 
subsequent writer of such a use of the facts, I even accelerated the 
writing and publication of the essay, more, indeed, than I ought to 
have done, as one of the notes shews, and, as I have become sensi- 
ble, is shewn by many parts of it. I could write it over again with 
some improvements, I think ; but I am told that I could not better 
manifest my warm regard for both parties, and especially for 
Washington. 

Still, I feel the same regret which you have expressed; and 
had Mr. Jay and Mr. Sparks not written at all upon the subject, or 
not written what undoubtedly hurt the character of Hamilton, in a 
point in which he was remarkably superior to all the ambitious public 
men of his day, I should probably never have written a word about it. 
Mr. Adams's letter to Dr. Rush would have been no temptation to 
me, because his insinuation that all Washington's speeches as well as 
the Farewell Address were written by somebody else was too extrava- 
gant to make any general impression. 

I thank you again, my dear sir, from my heart. Perhaps you 
do not know our country perfectly when you regret, for my own sake, 
that I have not been a judge. 3 In 1827, when Chief Justice Tilgh- 
man died, the bar of Philadelphia requested the governor of Penn- 



* This refers to a statement in the Quarterly Review. 
302 



1860] WASHINGTON'S FAREWELL ADDRESS 

sylvania to appoint me chief justice of the Supreme Court; and I 
should have both willingly and thankfully accepted the office if it had 
been offered. But the governor was a Democrat, and I, as you rightly 
suppose, was not. He sent me a commission as puisne judge of the 
same court, which I declined. If Mr. Adams had been President 
when Judge Washington died, or, to speak more accurately, if Wash- 
ington had died when Adams was President, it was his intention to 
nominate me for a seat in the Supreme Court of the United States. 
But Washington survived until Jackson became President; and then 
the Pennsylvania categories occurred, — I was not a Democrat and 
he was. I have been offered judicial commissions since that time, 
both from the President and the governor of Pennsylvania; but I 
declined them. The office I was ready to accept, chief justice of 
Pennsylvania, was not offered; and yet if it had been offered and 
accepted, I must have given it up in 1838, for I think that I could 
not have held judicial office for a day, except under the tenure of 
good behaviour. Upon the whole, I think it best for myself that I 
have not been a judge. . . . 

(To the same.) 

Philadelphia, 15 June, 1860. 
Pray do not write, or think, of wearying me with your letters, 
or of my wishing you to be anywhere but where you are, and as you 
are, while I live, to refresh me with them. I have no greater anticipa- 
tion of pleasure than to see your handwriting on the back of a fresh 
letter, nor any greater enjoyment than to open and read it. I have 
reason to be thankful for a great many blessings, but this, of inter- 
course with you by letter, so entirely unprepared by me, seems to be 
so providential a supplement to my decaying enjoyments, by the 
Great Being who is over all, that I can refer it to no other cause. 
I have several very good correspondents, — one only remaining of my 
college classmates, 85, but still having a fresh heart and a fine intel- 
lect, — and I drop none of them myself ; they have dropped only too 
fast by death. But your letters bring me back to friends who left 
the world thirty and forty years ago. I will not say by what char- 

303 



HORACE BINNEY [JEt. 80 

acteristics you recall them, but I repeat, do not permit yourself to 
think of wearying me with your letters. . . . 

I am very glad that you liked Marshall and Tilghman, and 
that I did not so mar them by my account of them as to prevent your 
seeing that they were worthy of some commemoration. There were 
many men of their day who had a considerable share of their qualities, 
— the fruit, no doubt, of the circumstances to which you allude; but 
they were distinguished, with such men around them, by the large 
proportion in which they possessed the love of good, of justice, 
uprightness, order, simplicity of life and faith. I neither find 
nor hear of such men now in high place. They live, I hope, to be 
drawn out again in case of need; but the present training is, I fear, 
defective. 

Dr. Moore, of our church, told me that when he first went to 
the Diocese of Virginia, after his consecration as bishop, he found that 
the gentlemen of Richmond, well educated and highly respectable 
men, on the outside of the church perhaps, were restive under the 
reading of the ante-communion service on every Lord's day. One or 
more of them begged him to let it be confined to communion days, 
and he asked Marshall what he thought of it. " Oh, give them the 
whole of it, always. If they don't like it now, they ought to like it, 
and I think so well of them that I believe they will like it in the end." 
And the bishop persevered, with good effect. One of the best proofs 
of his virtue is that Jefferson had a mortal hatred of him ; and as far 
as Marshall's pure nature permitted, he reciprocated the aversion. 
When Hamilton, in 1801, exerted himself with all his correspondents 
to prevent the Federalists from making Burr President, and to give 
their votes in the House of Representatives to Jefferson, as the less 
dangerous man for the country, he wrote to Marshall asking him to 
use his influence to the same end. Marshall replied that he agreed to 
his arguments, but it was impossible for him to give his assistance. 
That was too much for him. 

We are on the eve of a great struggle in the Democratic party, 
which threatens to divide the Democracy of the slave States from 
that of the North, the union of the two having for many years given 

304 



1860] EVE OF THE CIVIL WAR 

them a very pernicious ascendency in the government. I hope you 
will excuse me for desiring that the breach may become irreparable. 
The Democratic Convention at Charleston, in April, failed to agree, 
and several of the Southern States seceded, and adjourned to meet at 
Richmond a few days ago. The Northern portion adjourned to 
meet at Baltimore on the 18th, Monday next. I shall not learn the 
result in time for this steamer ; but if the Northern ( Douglas ) party 
shall hold on to their candidate for the Presidency, I will inform you 
of the result, and give you a little sketch of our parties, which will 
make American politics more intelligible to you, if you ever attend to 
them. An adherence by the Northern Democracy to Douglas will, 
according to present appearances, sunder these two great divisions 
for a long time, — I hope forever. The Democracy of the South is 
better disposed to good government in general than the Democracy 
of the North; but they are incurably vitiated upon the subject of 
slavery, and bent upon making it a federal institution, till it stands 
in the Senate of the United States in equipoise with the free 
States. . . . 

{To J. C. Hamilton, Esq.) 

Philada., 6 July, 1860. 

I am quite obliged to your daughter for copying, in her clear 
and ladylike character of hand, the remarks from the Daily Evening 
Traveller. . . . My own impression of the work, with less than the 
depth in which it has gone in me, is obviously in the writer, — that the 
character of your father, his genius for government, the impression 
he made upon this government, both in Constitution and administra- 
tion, in connexion with a pure system of political morals, is thor- 
oughly brought out by it, and exhibited for permanent instruction 
and use. All future history of his period must be founded upon 
your exhibition of the epoch, in the person and productions of the 
first Secretary of the Treasury. Editors of papers may say what 
they please at this day of your party and personal predilections, but 
the day is nearer now at hand than I once thought it ever would be 
when, by your book, all men who form their opinions upon evidence 
and reflection will agree that your father's genius, talents, forecast, 

20 305 



HORACE BINNEY [JEt. 80 

political wisdom, and integrity are indelibly stamped upon the public 
acts of his time, in which he had the principal part; and that the 
good which remains to us was mainly his, and the evil what he laboured 
to prevent the enemies of good government from perpetrating. I 
value the work almost as much for the justice it has done to Jefferson 
as for the justice it has done to your father, and for the unimpeach- 
able character of your evidence as for its conclusiveness. He tells his 
own history, Jefferson tells his own, Madison tells his, Adams tells 
his; but in Hamilton's uniformity — straight, elevated, always lead- 
ing upward — and in their diversity — sometimes tortuous and almost 
always selfish, in one or two of them often mean and despicable — the 
truth comes out with equal relief and strength as to all. Though 
there is little formal portraiture in the work, — and I hope there will 
be none, — the real portraits in it are innumerable and excellent, from 
the great full-length of your father down to the shadows on the wall 
which are flitting at his side. I almost envy you the satisfaction of 
writing such an imperishable history of such a father. 

There is no great probability that I shall again visit Saratoga, 
much as it would delight me to be your guest and to know your chil- 
dren who are about you. The foot of time has ceased with me to be 
" inaudible." I hear all his footsteps, and they are quicker and 
quicker, in nameless directions towards me and around me. None of 
them, however, alarm or shake me ; nor do I fear that in their nearest 
approach to me they will disturb in the least my love of what is true, 
good, worthy, or beautiful. . . . 

(To the same.) 

Philada., 7 Sept., 1860. 
... I have had but one political view of our parties all my 
life. The South first debauched our people to Democracy. Jefferson 
was not in this the leader more than the follower. It is inseparable 
from the institution of slavery. The masters have the spirit of ruling 
in them, as it regards their slaves, and will brook no rule but their 
own. The South has therefore promoted constantly the enfeeblement 
of the Federal government by interpretation, by internal policy, by 

306 



1860] EVE OF THE CIVIL WAR 

arrogance in the States. To this effect she has promoted Democracy 
to the North, and has combined as one State to lead the general De- 
mocracy, by gratifying the venal motives and passions of Northern 
demagogues, and reserving for her statesmen the higher sphere of 
directing the public administration. She has never been covetous of 
office, but always of ruling the appointing power. Her ambition is 
not unworthy of praise; but while she has cultivated the influence 
of men of talents and education at home, she has assisted the Democ- 
racy at the North to suppress such men, or to deny them all important 
share in the government. She has introduced a standard of politics 
and political morality which gentlemen cannot live by; and they 
must remain in their cocoons, therefore, or renounce their honest 
convictions by becoming incorporated with them. 

And now, when for the first time the institution of the South, 
which can never go to the free labour Western States, nor come to 
the free North, has caused a split, which, if established, will give the 
truly republican men of the North and West the opportunity of 
bringing honest men and sound Federal politics — I mean sound and 
constitutional for the Union — into the general administration, the 
Bell and Everett Whigs — the Lord forgive them — come in to assist 
one of the Democratic sections to get the ascendency, and, as it were, 
to drive the Republican wedge out of the log, that wedge, if it be 
good for nothing else, being good enough to split the Democratic log 
and, in my opinion, to keep it split. If Lincoln succeeds, the South 
will not think of going out of the Union; but whether they think it 
or not, they will go out of the rule of the Union, and that I most 
heartily desire. Both the policy of the South and the bearing of their 
public men are intolerable to me. I think their bearing must be so 
to every man at the North who wears a clean shirt preferably to a 
dirty one. And their institution will keep it so. They have got now 
to the very top of their brag, and those who now give way for fear 
of the Union, are the doughfaces of John Randolph, if there are 
such in the country. 

Write me when you come back, if you go; and see me as you 
promise in the autumn. 

307 



HORACE BINNEY [JEt. 80 

(To Sir J. T. Coleridge.) 

Philadelphia, 20 Nov., 1860. 

Your very kind letter of the 22 Oct. and the lecture on public 
schools, with the Guardians, have given me very great pleasure, and 
have been a banquet to my ladies. I am not insensible to the good 
opinion of such a man as your son, nor to such praise as his. There 
is apparent in both his reviews of Mr. Ruskin's last volume and of my 
pamphlets a conscientiousness which I regard as the only safe gov- 
ernor in life of either learning or accomplishments ; and though, of 
course, I think him to have been in some degree influenced by personal 
relations in what he has said of me, yet I cannot help thinking rather 
better of myself because he has said it. 

The paper on Ruskin is admirable. I have not been as partial 
to Ruskin's writings as some of my friends, and particularly a highly 
gifted son of my sister, who bore my name, and who died a few years 
since in France. He thought him a leader in an important revolution 
in art-criticism and painting, and that he was sure to leave his mark 
upon the age. I have little knowledge of painting, but a strong 
general love of it ; and as it happens where this is the character of a 
man's condition in regard to the other sex, my judgment is probably 
not very discriminative. But being habitually averse to extremes, 
whether in doctrine or measures, as they generally pass into extrava- 
gances, I have paused at much that I have read in Mr. Ruskin. Our 
generalizations are so often imperfect, at least when we have not 
definitions or axioms to guide us, that we ought to keep our con- 
clusions farther away from a universal result than he does, if we 
mean to be safe in taste, or politics, or, indeed, in anything. Your 
son has very skilfully touched Mr. Ruskin's extravagances, while at 
the same time he has shewn a lively sympathy with some of his re- 
markable beauties. It is decidedly an honest and fearless criticism, 
as well as candid and appreciating, and manifests great ability as a 
critic. It ought to do good to the writer; but there are some wits so 
nearly allied to madness, that there is no answering for the prescrip- 
tion beforehand. . . . 

308 



1860] EVE OF THE CIVIL WAR 

I regard [your lecture] as a treasure, and have read it again 
and again. I like every part of it, and differ from you in no par- 
ticular where its functions are of a general nature, or even where 
they are special or limited, and I am able to apply them to the facts. 
How exactly do I adopt your appreciation of the boy-nature, — which 
we do not understand I think as well as we ought, — and your account 
of Arnold, so perfectly corresponding with what I had inferred from 
his letters and life, and your dissent from the attempt to mix pro- 
fessional training in schools and colleges with the proper business 
of education. The great basis of liberal education can be no other 
than the Greek and Roman classics, if we mean to educate men. There 
never has been any other basis since the revival of letters. It has 
made great men in every department, and will make them again. The 
objection to it has come from men who were merely professional men, 
and not educated at all. I know a number of only half -educated men 
who nevertheless have been benefited enough by it to be at an infinite 
distance from any such objection. I hope your lecture will do good. 
My great comfort in our comparatively crude state is the thought 
and hope that the men of England will hold up their old standard 
openly before the world, and that we may be encouraged and in- 
structed by it to follow in that path. 

You will have learned before this that Lincoln is chosen by the 
people; that is to say, the people have chosen electors who in the 
next month will give him a considerable majority of the electoral 
votes. The details would not interest you; but the people of Penn- 
sylvania have given a larger vote for him than they have ever given 
for any President since Washington. It is much the same in New 
York and Ohio (the three great States of the centre, with from eight 
to ten million of freemen). South Carolina, upon this intelligence, 
has declared, so far as her Legislature can declare it, that she will 
secede from the Union, and has called a convention of her people to 
resolve upon it. Other Southern States are doing or have done the 
same. Secession by one or more of the States is an absurdity. The 
whole people (not the States) made the Constitution and Union, and 
no part or subdivision of the people can go off, any more than a 

309 



HORACE BINNEY [jEt. 80 

county or shire can go off from a State. It is revolution, and that 
only, or at least an attempt to make one. 

If the purpose is to make a Southern union as a separate union, 
the universal opinion here is that such a nation could not subsist, for 
want of the necessary elements, and that the United States, from 
the geographical structure of their territory, cannot permit it to 
subsist. If Europe will let us alone, the whole, it is thought, will be 
an abortion. If any great State interferes for the South, it may be 
an awful and desolating convulsion. 

I can suggest no probable cause for this, but the conviction 
among Southern politicians that a union with the Democracy of the 
West and North to give further extension to slavery is from hence- 
forth hopeless, and that the subordination of the South to the general 
policy of the North and West must, from the increase of the West, 
be soon definitely established. This, I admit, is probable, and very 
unpalatable to the ambitious men of the South; but the consequence 
of its being established would be that the South would be more secure 
in the slaves they possess, tho' they would be disarmed of the power 
to send their slaves into the free territories, and would certainly be 
disappointed in the renewal of the slave trade. This last is with 
many the principal desideratum. We shall know what President 
Buchanan thinks about the matter in a fortnight. 

I have, however, detained you too long. What I meant by 
genius, in referring to the countenance of your friend Patteson, 4 was 
the very thing you describe, — quickness and soundness. It is the 
genius of the bench, and, indeed, of the lawyer generally. The two 
are not often nor generally allied. The countenance, or, more accu- 
rately, the head and the eye, give the indications of it, and these were 
all I judged by. Upon the whole, I did not miss as much as I might. 

Pray give my thanks and regards to your son. When he shall 
become Chancellor or judge of the Queen's Bench I am happy to 
believe that England will have a second judge of the same line, who 



* This refers to Mr. Binney's account (supra) of his visit to the King's 
Bench in April, 1837. He had sent Sir John a copy of what he had written at the 
time in regard to the appearance of the judges. 

310 



1860] EVE OF THE CIVIL WAR 

will have no fear of shewing that he is ex corde a Christian. What 
he has written at the close of his review in regard to some judicial 
appointments grieves me. 

Lincoln's election was soon followed by the secession of 
South Carolina, and for the next five months the political sky- 
became more and more overcast, until the storm burst with 
the attack on Fort Sumter. To Mr. Binney it was a period 
of patient waiting, the hope of a peaceful preservation of 
the Union growing every day more faint; but the instant 
that certainty was reached, though it was the certainty of a 
bloody war, his spirits rose with the thought that " all are 
now for the United States, here and everywhere northward 
and westward." 5 

(To Dr. Lieber.) 

Philada., 13 Dec, I860. 
. . . We are left in a bad condition by the course of the 
President. Better not to have said a word, than to have said what 
he did. Complicated as the South Carolina movement has been with 
bank suspension here, and generally through the South and West, it 
has produced an apprehension and agitation that neither cause would 
have produced by itself. My prescription is calmness, firmness, almost 
silence and self-concentration, that we may get the souls of the people 
who think into the proper frame. I am averse to these meetings, here, 
there, and everywhere. Inactivity was never of more value ; and as 
the difficulty cannot or will not be soon settled, there is the more time 
before us. If there is any vis medicatrix in a free government, it 
should be allowed a reasonable time to operate. No violent remedies 
can do good. I would tell the people, as I would tell an excited sea- 
man in a storm, " Hold on to the sheet and mind orders." Hold on 
to the Union, and the ship may come down again on to an even keel 
without your doing anything. You cannot tell what will be the effect 
you will produce by almost anything you may do now. If the disease 

"Letter to Dr. Lieber, April 18, 1861. 
311 



HORACE BINNEY [JEt. 80-81 

proves incurable, you lose nothing by such advice, and you will be 
better able to provide for what may turn up. 

South Carolina has discredited herself before the whole world, 
whatever may have been her troubles in the Union. Every State 
owes a debt to all other States, to act with dignity, and to make known 
the causes of discontent with her present condition. She must do 
this in no long time, or she will sink to the depth of Algerine or 
Tunisian degradation in old times. In the mean time I would leave 
her to herself, holding on to the Union, and working it with the means 
we have. A short time seems very long to the impatient and excited. 
A long time is short to look back upon if we have done nothing in the 
interval that we must lose both time and character in undoing. 

The danger of the country in the emergency is the general 
mediocrity you advert to. But do such troubles occur except when 
there is no man who rises so much above the common level as to be 
generally seen? One man having general confidence throughout the 
country, and raised above the rest by qualities fitted for the time, 
though perhaps not the best, would settle it in a day. Such a man 
would have prevented it. We have none such now, it would seem; 
but we must not abandon the hope of having him. In the mean time 
let us hold to the Union and wait for orders. 

(To J. C. Hamilton, Esq.) 

Philada., 29 Dec, 1860. 
... I am quite convinced that the President is and has been, 
from the election of Lincoln, false to the Union. Keith said at Colum- 
bia that Buchanan was pledged to secession, and must be held to it. 
What this means in full I cannot tell; but from the evidence thus 
far I regard it as meaning at least this, — that the condition of the 
forts should remain as they were, that is to say, perfectly inefficient 
for repression, or even for self-defence ; and it is this pledge or policy 
that Major Anderson has so nobly disappointed. But what is to be 
done for this gallant man? Is he to be ordered back? Is he to be 
left without supplies where he is ? Are we going to let this false chief 
leave Anderson to be starved out of Fort Sumter? Is not even a 

312 



1860-61] EVE OF THE CIVIL WAR 

revenue cutter to be put at his service, for communication as well as 
support? I am told General Scott justifies him, as I can well believe. 
Cannot you give me some little private comfort on this and other 
heads? We seem to be getting into revolution by our very love of 
order. This has been my recommendation, you observe, to be calm, 
to keep things as they are, as much as possible, until a leader shall 
come from those who are entitled to lead. But if Major Anderson, 
with his men, is ordered back to Fort Moultrie, or he is arrested or 
ordered elsewhere, what then? Whatever may occur, I hope all 
schemes for calling the central States into conference, in exclusion 
of New York and the North, will be discountenanced and defeated. 
We must hold, I think, to the whole of the Union, in exclusion only 
of such slave States, whether cotton or boarder, as chuse to go off. 
Keep up the name, the prestige, and the old Union and Constitution, 
whatever happens. That is my faith, and I guess it is yours. 

Happy, very happy, New Year to Mrs. Hamilton and all of you. 

{To Dr. Lieber.) 

Philada., 5 Jany., 1861. 
... I was very much struck by the contraction which Mr. 
Calhoun's social theory had incurred through the influence of slavery, 
perhaps through his peculiar political position in regard to it. He 
walked with me one morning, in the year 1834, for nearly two hours 
on the esplanade of the Capitol ; and gave his views to me, I suppose 
fully, as he had a full opportunity. I was a listener for the most 
part, and only interjected now and then a doubt or quaere, or sugges- 
tion, to keep him to the line he first traced, or rather to show that he 
had my attention. He obviously considered society as consisting 
only of two classes, the poor who were uneducated, and doomed to 
serve, and the men of property and education, to whom the service 
was to be rendered. Regarding these two classes as discriminating 
the people of Pennsylvania as much as South Carolina, he said, em- 
phatically, " [The poor and uneducated] are increasing; there is no 
power in a republican government to repress them; their number 
and disorderly tempers will make them in the end efficient enemies 

313 



HORACE BINNEY [jEt. 81 

of the men of property. They have the right to vote, they will finally 
control your elections, and by bad laws or by violence they will invade 
your houses and turn you out. Education will do nothing for them ; 
they will not give it to their children ; it will do them no good if they 
do. They are hopelessly doomed as a mass to poverty, from genera- 
tion to generation; and from the political franchise, they will in- 
crease in influence and desperation until they overturn you. The 
institution of slavery cuts off this evil by the root. The whole body 
of our servants, whether in the family or in the field, are removed 
from all influence upon the white class by the denial of all political 
rights. They have no more tendency to disturb the order of society 
than an overstock of horses or oxen. They have neither power nor 
ambition to disturb it. They can be kept in order by methods which 
a republican government, as well as a monarchical or a military one, 
can apply. They have no jealousy of the other class, nor the other 
of them. They never stand on the same platform with the white 
class. They only require supervision and domestic discipline to keep 
them in good order; and such means are easily applied and become 
normal in the State. The white class is therefore left to pursue with- 
out apprehension the means they think best to elevate their own condi- 
tion. Slavery is indispensable to a republican government. There 
cannot be a durable republican government without slavery." 

This was the strain; and throughout the two hours he spoke 
of slavery as a beatitude of the governing party and the best also 
for the slaves. Not a single remark was made by him upon the in- 
fluence of slavery on the condition of the poor and uneducated of the 
white class, nor upon white mechanics in the inferior class, nor upon 
education in regard to the slaves themselves, nor upon the diversified 
interests which constitute a civilized and enlightened community. The 
pillars of a republican State — and he only appeared to contemplate 
two — were a slave class and a property class, such white persons as 
were not within the property class being wholly ignored. They came 
into his consideration only as they acquired property enough to belong 
to the governing class, and then they got into the same category. 

I doubt if Mr. Calhoun's views of society, republican society, 

314 



1861] CALHOUN ON SLAVERY 

were not derived from this programme; and if his logic was always 
hard in defending such a theory of republican government and life, 
it is not clear that his heart was less hard. A man who makes slavery 
an essential element in his Utopia must be employed in narrowing 
the scope and influence of our noblest emotions, and in concentrating 
the powers of his mind upon a hard unsocial strategy, to defeat the 
insurrection of all liberal natures in the same community against so 
artificial a system. Such a heart must be hard. 

In these sentiments of Mr. Calhoun I think I can read his 
entire political life ; and is it not apparent that the present revolution 
in South Carolina is the fruit of such principles, and of none other? 
It seems to manifest an intense hatred of all other political institu- 
tions than just such as Mr. Calhoun exhibited to me as its elements, 
a wish to involve all others in anarchy, a doubtful sympathy with 
even slavery, except in the dual distribution of classes he postulated, 
and as uncompromising an hostility to slavery under any modifications 
that may tend to its emancipation or melioration as it does to abso- 
lutely free institutions. The French Revolution itself seems to have 
been more kindly, more tempered with a love for what was liberal, 
social, and exalting, at its commencement than this, where all that 
we hear or see is selfish, misanthropical, and hard, aspiring to exclude 
the whole American world from its communion, and to raise its empire 
upon negro slavery and nothing else. What a system of public moral- 
ity is shown in the instant repudiation of public trusts, — the judge 
of his court and functions, the marshal of his official warrants and 
writs, the collector of his duties, transferring the property of the 
United States to enemies, the captain of a revenue cutter discharging 
his men and re-enlisting them in alien or enemy service, every one 
of these persons being sworn to support the Constitution of the United 
States; the State itself profanely absolving men from their duties 
and trusts, and substituting in the very post-offices and officers op- 
posing duties for the momentary profit and convenience of the in- 
surgent government. All this strikes me as horrible, blasting the 
character of the State and preparing an awfully black page for 
history, whether the insurrection succeed or not. Of the same nature 

315 



HORACE BIXNEY [^Et. 81 

is the tampering with the Cabinet officers and by them, possibly to 
the blinding of the President, certainly to his infatuation, every step 
being as infamous a breach of trust as the robbery of the trust bonds 
from the strong box of the War Office. If the men are insane, there 
is an excuse for them ; but otherwise there would seem to be a scorn of 
morality, or honour, even of decency, in the whole outbreak. Depend 
upon it, my dear sir, the apparent unanimity is deceptive, or slavery 
as Mr. Calhoun taught it has eaten up the heart of public or national 
honour from the people. I am prepared, on the contrary, to learn that 
terror does a great part, and either way what a result should it pre- 
pare us for? 

{To the Hon. D. A. White.) 

Philada., Mar. 1, 1861. 
Your letter of the 26th Feb., which I received yesterday, gave 
me, as all your letters do, great satisfaction, mixed with some regret 
that your state of health did not permit you to write the whole of it 
yourself, and bringing a little reproach to me from my own heart that 
I, with better health, had not anticipated you by a letter of my own. 
I lose no time, however, in telling you how much I sympathize with 
you in the confinement your health makes necessary, and how thor- 
oughly I concur with you in all you have said about secession and 
the remedies for it. The word is simply a political invention to drug 
the consciences of ignorant men, who have no love for treason. I do 
not believe that one single man of sound mind in the country, having 
the least tincture of jurisprudence, entertains a different opinion. 
The history of the Constitution, and the nature, end, and language 
of the agreement for Union, make such a right in one of the parties 
an absurdity, and the assertion of it, after seventy years administra- 
tion, a gross fraud. A proof that there is a consciousness of this, 
even in those who assert the right, is in the immorality and dishonour 
of both the public and the personal acts which have been the conse- 
quence of the assertion in many flagrant instances. The code of 
public morality in the South has been turned topsy-turvy by it, and 
it is not wonderful that the poison has passed from public bodies to 
indivi duals, until we must blush at the baseness of men in every grade 

316 



1861] EVE OF THE CIVIL WAR 

of official station. It seems to be thought necessary only to have an 
official character of some kind under the United States to make it the 
cloak of rascality, such as men in decent society are pilloried for, or 
whipt at the post, or hanged, or shot. No truthful doctrine ever pro- 
duced such fruits. I expect a universal demoralization, such as we wit- 
nessed in the French Revolution, if the stream runs its natural course. 

All that is left to the government is, no doubt, firmly and 
calmly to deny and to resist it ; to assert the obligation of the supreme 
law, and to enforce it, by every means at command which can reason- 
ably promise success ; and if the present means are so reduced by 
treason and fraud that present action can only be of minimum 
amount, then the duty is to apply the minimum power, and to collect 
the better means. Those who are opposed to this seek protection for 
their own wrong, or are indifferent to the overthrow of the govern- 
ment. If we mean to preserve the Constitution for any of the States, 
it must be shown that there is some virtue in it ; and it will be seen 
to have none if, when violence is used against the law, we attempt 
to allay it by words, by flowers of rhetoric. The namby-pamby talk 
about civil war and bloodshed is the language of treason, open or 
covert. I want no more force than will maintain the law against the 
force that prostrates it ; and thus I would let the law-breaker fix the 
quantum which the government should use. A Spanish story is not a 
bad one. A soldier in Madrid, being assailed by a furious dog, ran 
him through with the spear at the fighting end of his halberd. " But 
why," said the owner, " didn't you beat him off with the wooden end?" 
" I would," said the soldier, " if he had come at me tail foremost." I 
am for the wooden end, if it will answer. As to invasion, conquest, 
and all that, that is stark nonsense. What is wanted is to assist the 
Union men in the South to maintain their rights as citizens of the 
United States, in spite of the usurped power and terrorism. 

But how has it happened that the loyalty of the people in the 
Middle and Northern States to the Union is so feeble? I will tell you, 
though vou know it alreadv. 

The conflict which the Constitution was to undergo with the 
States was anticipated by Washington and Hamilton; and an im- 

317 



HORACE BINNEY [jEt.81 

portant part of the Federal policy was to bring the government of the 
United States as much before the people, as an instrument of good 
to them, as possible. Upon this the Democratic party, led by Jeffer- 
son, fastened, as proof of a design to bring in monarchy, and so 
perverted the body of the country as to supplant Federalism and to 
destroy its general influence. Since that time the States have been 
the important power, and the United States subordinate, for all pur- 
poses of internal influence and welfare. Add to this our innumerable 
institutions of local authority, by which we govern ourselves in cities, 
counties, and districts, with hardly a reference to any superior power 
at all, and to none whatever beyond the State. Hence it is that we 
are Virginians, Pennsylvanians, New Yorkers, etc., and that, except 
when we find ourselves in foreign countries, we have no country of our 
own. Universally we assert that we owe allegiance, in the jural sense, 
to our respective States, instead of fidelity or fealty. In the South, 
where the heresy began, this allegiance to the State has been avowed 
as primary; and the only true allegiance we owe, that which is due 
to the United States, in return for all the protection we have against 
foreign states, against all other States of the Union except our own, 
and against our own when she exceeds the limits which the Constitu- 
tion of the United States imposes, — this only true allegiance is placed 
next after that which they claim for their own State. A nation of 
more than thirty States, owing, the people of each State, allegiance 
to thirty different governments ! And you see what it has made us. 
We are a people, for the most part, who have within their own terri- 
tory no country. We have not among us the bond of loyalty to the 
Union. Even in the army and navy the separating State feeling 
exists to some extent, has already done shameful things, and no one 
can tell how far it will go. 

In fine, my dear old friend, I fear the whole piece is nearly 
acted out. We may possibly, through the influence of private inter- 
ests, patch up the Union again for a short time, though even this 
hangs in doubt ; but a durable, homogeneous nation we cannot have, 
nor, whatever may be our other blessings, shall we or our children be 
part of a people who will partake of that blessing which the people 

318 



181] DEATH OF JUDGE WHITE 

of England, France, and Germany enjoy, and which the people of 
Itly are striving to attain, — of having one fatherland. We often 
best of speaking one tongue in better accents than the same amount 
ofpopulation in any other part of the globe. I devoutly wish that 
w< could also boast of speaking with one heart, even if it were only 
oione thing, — our common country. I have some doubts whether na- 
tinal or public virtue can be grafted upon any other stock. How is it 
tcexist where one part of our people graft into an olive, another into 
a rab, another into an alligator-pear? For I believe they raise that 
irsome parts of the South. They certainly graft into as bad things. 
But you and I, my dear old friend, though we may write and 
tlnk about such things, have little more to do with them; thankful, 
n» doubt, on both sides, that though we have not lived to see the hopes 
o:our noble Federalists in the morning of our day realized, but their 
f<irs rather, we have nevertheless been permitted to partake of innu- 
irrable comforts together with our length of days, and to be un- 
fignedly thankful to Heaven for them all. . . . 

The above letter ends the correspondence, as Judge 
Vhite died on March 30th. Hearing of his death, Mr. 
Inney wrote: 

I have now lost my warm-hearted and affectionate correspond- 
ed whose purity and intelligence were a constant refreshment to 
tink of, and whose tastes and opinions were more in sympathy with 
ry own than those of any other man of my time. In many respects 
lhave seen no person like him, no person so unvarying for so long a 
L 7 e, the delicacy and susceptibility of his affections continuing the 
sme from my first acquaintance with him. The remembrance of him 
mst be a store of sacred thoughts, as well as of honourable and wise 
jcinciples to his descendants. ... It will be to me while I live. Let 
Itose who were nearest to him know how deeply I respected and loved 
1m, and how truly, through our long lives, the intercourse between us, 
hich began in these sentiments, was without jar or shadow to the end. 6 



'Letter to Rev. W. O. White, April, 1861. 
319 



HORACE BINNEY [^Et. 81 

(To Sir J. T. Coleridge.) 

Philadelphia, 5 Mar., 1861. 

It would have corresponded better with my sense of your kind- 
ness if I had replied immediately to your letter of the 23 January; 
but, hoping that you would not misapprehend my delay, I postponed 
my acknowledgments, partly from the expectation of being able to 
say something more definite and encouraging on the subject of our 
public affairs, and recently, I grieve to say, from the severe illness 
of my son Horace, which has left me little else to think of . . . . 

The condition of this country you appear to know in a general 
way; and I can hardly express my sense of the sympathy on this 
head which your letter expressed to me. Though the difficulties of 
our position have not diminished, and have in some respects been 
enlarged, we are at length in a condition to meet them with more 
regularity, and probably with more effect, by the peaceable inaugura- 
tion of Mr. Lincoln as President, which took place at Washington 
yesterday. I send you a newspaper containing a copy of his address 
before taking the oath of office; . . . and I hope you will agree with 
me that it is a plain, sensible paper, expressing right doctrines as to the 
perpetuity of the Constitution, the unlawfulness of secession, and the 
duty of enforcing the laws ; and in a kind temper, tho' with all requi- 
site firmness, declaring his purpose to administer his office with fidelity, 
and with effect as far as the country shall supply the means. I should 
think, and this is the common opinion, that the paper has been written 
by himself; and that it is a proof of a plain, sound mind, free from 
any disposition to press what he thinks right with much rigour, or 
what he thinks wrong or plainly inexpedient, from mere fidelity to 
party; the best temper, perhaps, for our country. His reasoning 
upon disputed points, where I have examined it with attention, ap- 
pears to be accurate, and his heart kind. He is generally regarded as 
a cordial man, not highly educated, but of good reasoning powers, 
and both calm and brave. On the whole, I like his debut. The 
people will understand him ; and that is a great point with us. 

The history of this flagitious outbreak, for so I regard it, is 

320 



1861] EVE OF THE CIVIL WAR 

just beginning to be known. It is now pretty generally agreed that 
South Carolina has been preparing it for a considerable time past, 
and that it is the result of Mr. Calhoun's teachings upon the subject 
of slavery, assisted by the arts of ambitious men, of less ability than 
himself, who have filled the public mind of the South with appre- 
hensions for their domestic safety, on account of the growth and 
temper of the free States, who are unfriendly to slavery. The 
grounds of alarm on this score have been grossly exaggerated by 
these ambitious teachers, to the intent of obtaining a general consent 
to disruption at the first favourable opportunity; and Mr. Lincoln's 
election has been the signal. Yet all this, as some of the leaders now 
acknowledge, was as to them a pretence. They assert that the per- 
sonal liberty bills were of no concern to them ; that the difficulty in 
fugitive slave cases did not touch them. They demand the separa- 
tion because they regain free trade, — free importation of slaves, — a 
people of two classes, masters and slaves ; and they proclaim that 
slavey with cotton will command the highest position for them among 
nations. I regard the personal ambition of a few, the prejudices of 
the mass, who have been practised upon by their own politicians, a 
vain and blind confidence in their own staple product, and an impa- 
tience of any government in which the}' cannot lead, the natural pro- 
duct of their state of society divided between masters and slaves, as 
the causes of the result. As to maladministration of the government, 
oppressive laws heretofore, or dangerous interpretations of the Con- 
stitution, — they do not and cannot pretend to it ; for hitherto for 
half a century the Southern States, pretending Democracy, — and 
uniting with it in the North, though they now revile it with scorn, — 
have had everything their own way. They annexed Texas, they 
made the war with Mexico, they broke and repealed the slavery com- 
promise of 1820, they kept a majority of judges from slave States 
upon the bench of the Supreme Court, they promoted that change 
of opinion in regard to the power of Congress over the Territories 
which had been acquiesced in for more than sixty years, and has been 
discarded by the Dred Scott case, which sanctions their right to carry 
slaves into all the Territories. They have hitherto ruled, and their 
21 331 



HORACE BINNEY [JEt. 81 

rule has come to an end by the growth of the Western States, and by 
the revolt of Democracy itself from their bidding. This I believe 
is the whole story. The mass of Republicanism in the Western States 
is made of what was Democracy, rising up to assist the superiority 
of free labour over slave. I am not sorry that Democracy has done 
one good turn in my long life, the only one I can recollect. 

But the future of our country who can penetrate? I lean 
upon God, as you suppose, and there is no one else. We are divided 
here at the North, uncomfortably divided ; for many of those I 
respect lean strongly to the South in all things, justify the secession, 
argue for its legality, deny that it is treason, justify the taking of 
our undefended ports, the robbery of the New Orleans Mint by the 
State, the surrender of revenue cutters by their officers, the surrender 
of military chest, stores, and arms by the commanding officer in Texas, 
the gross infidelity of the Secretary of War, the Secretary of the 
Treasury, and the Secretary of the Interior, — treachery to make us 
hang down our heads in very shame. Such is the power of party ! 

I will not go on, my dear sir. You may not have the facts, 
and I do but hint at them, and I may be thought to be writing a libel 
upon many of my countrymen. But I send you a very instructive 
paper, copied into the National Intelligencer from the Charleston 
Mercury, the great and rather able organ of the conspiracy in that 
State, in the name of one of its principal editors, — a protest against 
the prohibition of the slave trade by the new Confederation. You 
will probably regard it as a phenomenon in the history of hallucina- 
tions, but I send it mainly to verify some of my brief statements in 
regard to the causes of the outbreak. South Carolina has led in this 
matter. It seems to be doubtful whether she will follow the Confed- 
eration unless she leads ; and there may be some good come out of this. 

When I get a clue to the measures of Mr. Lincoln in applica- 
tion of his principles, I may be better able to foresee results. At i 
present it is dark in many directions. It is, however, all clear above 
and, I thank God, within; and if I fail, I trust you believe that it 
will be in doing and in supporting what I believe to be right in His 
sight. 

322 



1861] EVE OF THE CIVIL WAR 

Your letter refers to your purpose of reviewing and publishing 
from your Journal some disquisitions on passages of the Testament 
which from time to time interested you, or seemed to require explana- 
tion. Pray do not defer it; and excuse me for adding, for my sake. 
My time is probably near at hand. Help me to redeem some that I 
have lost, not through worldliness, I hope, in its worst sense, but 
through arduous labours in a profession which, for several reasons, has 
severer labours than with you, from the condition of our society, the 
character of our education, and the multiform calls upon a lawyer in 
extensive practice. An American lawyer has been, in my time, doctor, 
surgeon, and apothecary all in one. But at no time of my life, even 
when in fullest practice, have I failed to recur to the blessed Book, and 
to have a keen relish for such disquisitions and notes as let me into the 
interior meaning of its passages. Pray help me to see more and better, 
in the twilight that is coming upon me. I have assisted to lead my sons 
and daughters in the same path. I too, while I read the Bible, try 
to study it, and feel myself, when our Saviour speaks, as if I were 
almost the central person to whom he speaks, " His eye fixed upon me, 
turn where I will." . . . 

Pray write again. Your letters are a comfort. 

(To J. C. Hamilton, Esq.) 

Philada., 28 March, 1861. 
... I thank you for the copy of Mr. Randall's letter. . . . 
The letter, if it was sincere, shows how much the spirit of advocacy 
will turn a man from all direct and colourless views, both of his sub- 
jects and of his adversaries, into the extreme of perversion and mis- 
representation. I think he makes out Jefferson to have been a Chris- 
tian ; and if he had represented your father as a demon, I ought not 
to have been surprised. There are mean and low girds at him that 
are worse than this, and it was these which the most repelled me. His 
letter, however, shows that he had no true conception of your father's 
character. In some points he may have resembled Strafford, who 
was a great man. But your father had not the spirit of a tyrant, 
and a pretty bloody one, too, as Strafford had ; and he had one con- 

323 



HORACE BINNEY \_Mt. 81 

sistent view of his political obligations, which Strafford never had. 
Wentworth's ambition was unlimited, and his principles sat likely 
upon him. Your father's ambition was great, but it was controlled 
and regulated by his principles, which were the same, and pre- 
eminently true, from first to last. I put him far before Strafford in 
good faith and moral compactness; but I admit, nevertheless, that 
Strafford was a great man, and Mr. Randall no doubt meant the 
comparison for a compliment. I want no compliments, however, to 
your father, which rest on a misconception of his character. I am as 
scrupulous of it as Addison is said to have been of his conception of 
Sir Roger de Coverley, and would quarrel with any one as soon as 
Addison did with Steele, who should attempt even to praise him at 
the expense of any of his real attributes. Would to Heaven that we 
had him now as he was at the age of forty-five! If he were living, 
we might have two opinions of our proper course, certainly not two 
hundred, as we now have; and his opinion would have rallied all the 
men of virtue and sagacity in the land, leaving the unprincipled to 
unite, if they could, under the opposite banner. 

We must, however, do as well as we can without him. I hear 
of a voice from the other side of the Atlantic that " the people of the 
United States seem to be either traitors or imbeciles." Let us be heed- 
ful on this head of public character. I would not turn on my heel 
for the choice of a government, if we lose that; and we are in immi- 
nent danger of it. I look upon the evacuation of Fort Sumter in this 
aspect. If that fort is given up in the spirit of peace, as it is called, 
it will be set down to the want of courage and purpose ; it will pass 
for simple yielding, unless there be something in the manner that shall 
proclaim disdain for the false, and wear even in the evacuation the 
face of defiance. This notion of letting them go and carry off the 
fruits of their treason, as a brotherly arrangement, though it may 
leave one brother under the brand of treason, will place the other 
for years under the brand of cowardice. I tell you frankly, if I 
were President, I would bring them off under fire, though I would 
previously say, publicly, the fire shall be first drawn from the other 
forts. 

324 



1861] THE PRESIDENT'S PROCLAMATION 



XIII 

THE CIVIL WAR PERIOD— HABEAS CORPUS 
PAMPHLETS 

1861-1865 

ON April 13 Fort Sumter was fired on, and it was 
evacuated two days later. On the 15th the Presi- 
dent's proclamation was issued, calling for seventy- 
five thousand troops to put down the rebellion. Up to this 
time the feeling of Philadelphia had not been by any means 
unanimously loyal. Lincoln's majority over his three oppo- 
nents had been only 2039, out of a total vote of 76,407, cast 
as follows: 

Lincoln electors 39,223 

Breckenridge electors 21,619 

Douglas electors 8,434 

Bell electors 7,131 

The influence of party spirit and of commercial and 
social relations with the South was very strong. Meetings 
had been held to protest against any " coercion" of the South, 
a newspaper, the Palmetto Flag, was started to advocate the 
Southern cause, and Justice Woodward, of the Supreme 
Court, was not alone in the sentiment that "If the Union 
is to be divided, I want the line of separation to run north 
of Pennsylvania." Under these circumstances the sup- 
porters of the Union felt that Philadelphia must utter 
some word to show on which side she really stood, and to 
serve as a rallying cry for all loyal men, without distinction 

325 



HORACE BINNEY [JEt. 81 

of party. Accordingly, on the day the President's procla- 
mation appeared, the following reply to it was drawn up 
by Mr. Binney, signed by a large number of influential 
citizens, and widely published: 

The unparalleled event of the past week has revealed to the 
citizens of the United States, beyond question or possibility of doubt, 
that a peaceful reconciliation under the form of our Constitution is 
repelled and scorned, and that secession means, in the hearts of its 
supporters, both treason and war against our country and nation. 
We, therefore, the undersigned, loyal citizens of the United States, 
and inhabitants of the city of Philadelphia, responding to the proc- 
lamation of the President of the United States, hereby declare our 
unalterable determination to sustain the government in its efforts to 
maintain the honour, the integrity, and the existence of our National 
Union, and the perpetuity of the popular government, and to redress 
the wrongs already long enough endured. No differences of political 
opinion, no name or badge of diversity upon points of party dis- 
tinction, shall restrain or withhold us in the devotion of all we have 
or can command, to the vindication of the Constitution, the main- 
tenance of the laws, and the defence of the flag of our country. 

Besides the original signers, many thousands of citizens 
put their names to this declaration of loyalty, and from the 
day that it appeared the adherence of the great majority of 
the people of the city to the Union cause could not be ques- 
tioned. 

As during the previous months of uncertainty, so 
throughout the years when Mr. Binney keenly watched the 
varying fortunes of the Union armies, his letters gave ex- 
pression to the same hopes and fears which thousands of 
other men must have felt, especially men like himself, too 
old to bear any part in the great drama which was being 
enacted before the eyes of the world, but not too old to take 

326 



1861] THE PRESIDENT'S PROCLAMATION 

the deepest interest in it. Where, indeed, as happened more 
than once, he saw an opportunity to strengthen the hands 
of the government by the use of his pen, he gladly availed 
himself of it ; but in general he made known his views only 
to the few friends to whom he wrote, and always with the 
admission that he was an onlooker whose range of vision was 
confined to what appeared in the newspapers. 

While never yielding to despair, he was far from being 
always confident of the complete triumph of the Union, and 
at first he certainly regarded a separation as possible, if not 
probable. The mere extent of territory over which the old 
Constitution should be supreme was, indeed, of less conse- 
quence in his eyes than the maintenance, unimpaired, of the 
Constitution itself, and of the national traditions which cen- 
tred about it, in the States which remained loyal. He was 
ready to devote all that he had to the maintenance of the 
Union, if that were possible; but if not, a free nation of 
Northern and Western States was still worth living for. 
Throughout the four years the existence of the war notice- 
ably affected the tone of his letters. He strove to write 
cheerfully, but there was always " this overhanging cloud," 
which prevented his life from being, as it might have been 
" a day of the clearest and longest sunshine that any rational 
person could desire." l 

He by no means approved every act of the administra- 
tion during the war, but he held that at such a time loyal men 
should refrain from all public criticism. He had his own 
opinions and he expressed them in private, but during the 
whole war no word fell from him which could have added 
the smallest feather's weight to the burden of those who were 
charged with the weighty task of government. 



1 Letter to Sir J. T. Coleridge, February 27, 1864. 
327 



HORACE BINNEY [JEt. 81 

(To Dr. Lieber.) 

Philada., 20 Apr., 1861. 
.... The trial has come, and we must abide it. Farewell to 
all public concern but that of maintaining the Constitution; and if 
it fails, which Heaven forbid! getting the same cut to sit well upon 
our smaller figure, and without the possibility of a rent or rip in the 
same place. I shall not probably live to see the end; but I shall 
breathe a prayer even to the last, that the people of whom my family 
and friends are to be a part will never again be fooled with the notion 
of a confederation of sovereigns, but belong confessedly and openly 
to one nation, however divided into States or shires, as much as to 
one God. . . . 

(To J. C. Hamilton, Esq.) 

Philada., 23 April, 1861. 

I thank you for your Sunday letter. The best day consecrates 
the good deed. I am heartily glad to hear what you say of Major 
Anderson and Fort Sumter, and the evacuation. Taking down a 
flag after terms of evacuation have been settled is not striking it, nor 
lowering it, but simply removing it as a corps or army does on its 
daily march or change of encampment. I am glad also that he did 
not see Beauregard as a guest. 

I saw your son Schuyler an hour or so before he departed with 
the Seventh Regiment. I had been out on my morning's walk of three 
or four miles, and was returning up the east and west street opposite 
my office, when I saw a blue army coat and cap in front of one of my 
servants at the office door, and then leaving and passing north. But 
the servant had descried me coming up the street, and ran to apprise 
him, and your son came up the street and got my cordial greeting. 
When we went into the office he said his wish was to obtain of me any 
book or work I might have in regard to the British attack on Wash- 
ington, and I gave him the only pertinent one I had, which he thought 
would assist him. How much he resembles, in countenance and fea- 
tures, his grandfather, with more height, and very finely proportioned 

328 



1861] PERPETUITY OF THE UNION 

height and figure too. It made my heart leap to recognize the lines 
of General Hamilton, which I remember from boyhood. The blood 
speaks in the prompt answer it has given to the call of his country. 

. . . But I want a nation. I sigh for it. I pray for it: that 
there may be some power that we all love, honour, and obey, as the 
power that comprehends us all as one people and one nation, in fine, 
as our country. Recently we had almost none, or the feeling was so 
buried and covered up in our hearts that we were hardly conscious 
of it. Now the covering is off in this State and everywhere to the 
north, east, and west, and it is bursting forth as universally as the 
leaves of the trees and the grass of the fields. This may be the bless- 
ing that is coming to us out of this fearful war; and I have a con- 
fident hope that it will come and be established over much, and the 
best part, if not over the whole. 

{To Sir J. T. Coleridge.) 

Philadelphia, 27 May, 1861. 

I am much gratified by your letter of 2d May, which got to 
my hands a few days ago, — thankful for its sympathy, which, indeed, 
we deserve, and will probably continue to receive from the best of 
your people. 

I agree that the dream of the perpetuity of this Union, as it 
was framed at the close of our Revolution, has been terribly dis- 
turbed; and perhaps we may never find it revisiting our sleep here- 
after. Personally I have not been misled by the illusions of the dream 
at any time from my youth. Washington's Farewell Address shews 
how great he thought the difficulties of the problem were. Hamilton, 
near the close of his life, assigned fifty years as the term of the Union 
and Constitution; and that period has just expired. I have had 
the disadvantage of looking upon the course of events since the death 
of these great men, and have received as intimations of the approach- 
ing end the successive steps of what has been called the march of our 
prosperity, — the acquisition of Louisiana and Florida, the annexation 
of Texas, the conquest of Mexico, the purchase of California, the 
progress of our population westward, and the progress of democracy 

329 



HORACE BINNEY [JEt. 81 

in all directions. I had better have said with than and, for this has 
been the " poison in the pot" throughout ; but thousands upon thou- 
sands of our statesmen have said, and perhaps have thought, that 
the increase of democracy was the best of our prosperity, and its 
sure foundation from the beginning. I have had no such faith ; but 
have been a sceptic, in this only, from my youth. 

This course of enlargement, pretty much in manner and form 
as it has occurred, was anticipated in all its features at an early day, 
with only one false conclusion, — that the development of the South and 
of slavery would secure the rule of the whole to that quarter, instead 
of inducing the South to secede because the growth of the Western 
States has prevented that rule. In all other points the progress was, 
I think, foreseen, and as early as 1803 led to a design by some eminent 
men from the Eastern States to divide the Union at that time. This 
was immediately after Mr. Jefferson's purchase of Louisiana. I have 
seen copies of the letters addressed to the gentleman who succeeded 
Hamilton in the Treasury Department, justifying this design, tho' I 
have never seen the replies. The Secretary was then out of office. 
Hamilton became aware of it, and declared himself hostile to it, even 
to the drawing of his sword against it ; and it consequently fell 
through at Hamilton's death, — by the ruin of Burr, who was to have 
been an actor in it. It is an interesting fact, which I have learned 
from one of Hamilton's sons, that his, Hamilton's, estimate, just or 
otherwise, of the prejudice among military men against any one of 
their body who refuses to fight a duel overruled his better judgment, 
and led him to accept Burr's challenge, lest the military command 
might be lost to him on the side of the United States in the event of 
the projected revolt. Strange conflict which gave weakness the vic- 
tory over both patriotism and morality ! 

But I do not at present entertain the opinion that the Union 
and Constitution will not be, to at least a great extent, maintained, 
notwithstanding the outbreak of the slave States. 

The free States are at present as unanimous in maintaining 
both, against this secession, as it is possible for twenty millions to be ; 
more so probably than twenty millions ever were upon any question 

330 



1861] PERPETUITY OF THE UNION 

whatever. The assault upon Fort Sumter started us all to our feet, 
as one man; all political division ceased among us from that very 
moment. Private relations with the South have been put aside, no 
doubt with great regret. There is among us but one thought, one 
object, one end, one symbol, — the Stars and Stripes. We are to a 
great degree at present, and will shortly be throughout, an armed 
nation. We have the whole naval power of the country. We have 
nearly all its money at command. We know that we shall be both 
degraded and ruined unless this government is maintained; and we 
are not so much embittered at this time (as we hope we shall continue} 
as to be unable to make the combat as respectable in point of humanity 
as war between public belligerents can be. Most of the seceded slave 
States are much divided. Eastern Tennessee, Northern Alabama, 
Western Virginia, are wholly in favour of the Union. Kentucky has 
expressly refused to go out. Tennessee is still balancing; Missouri 
cannot go. Maryland, now that her mob has been suppressed, speaks 
and acts the language of Union, and she is encouraged to it by the 
presence of Pennsylvania forces in Baltimore and overhanging her 
western counties, which at the same time are known to be faithful, 
and will continue so against her secessionists if she can. Delaware is 
thoroughly Union. It is the slave-selling and slave-working parts 
of the South that have alone desired to break away, — by no means all 
of these, nor any considerable part of them but through delusion, 
venality, or terror. How can the North and West withhold their 
effort to suppress the terror which has enchained so many? It is 
their sacred duty under the Constitution. We have, therefore, both 
duty and right to confirm us in the effort. It will, I have no doubt 
whatever, be strenuously made. We have no reason to doubt, from 
either the purposes we entertain, or the motives which actuate us, or 
the means we shall apply, that God will help us. 

Some of the writers for the English press have but an imper- 
fect knowledge of the necessities of the free States when they argue 
that the slave States should be allowed to depart and make another 
nation. We are large enough, they say, — and that is true enough, 
though nothing to the purpose. The North and West cannot conquer 

331 



HORACE BINNEY [Mt. 81 

them. That also may be true, and yet nothing to the purpose. They 
will conquer the North and West and destroy the Union, if they can 
bring about what these writers recommend. Consider, Louisiana and 
Florida were purchased to make the union of the West with the Atlan- 
tic States possible. They hold the Gulf of Mexico and the river Mis- 
sissippi under their control, if they are left as they claim to be. Texas 
bounds us and turns us in to the South on the western side of the Gulf. 
Our intercourse with the Pacific States, all faithful to the Union, lies 
over the Isthmus of Darien. How can any part of the West continue 
in union with the North, or the Pacific be united to the Atlantic States, 
if an independent power holds this control? The question for nego- 
tiation is, Which shall be the master of the gates of entrance and exit 
to the North and West? Was such a question ever settled by nego- 
tiation ? The States on the Mississippi and the Gulf must be in union 
with the North and West, or be commanded by them, or the West 
must fly from the North. This is an old question. I heard it argued 
in 1797, when we had Spain to deal with in regard to these waters; 
and not a man South or North but held the opinion I express. It 
was from our weakness then that we did not conquer them; and to 
this single end — of maintaining our Union — we bought them after- 
wards, which was better; but their importance to the union of North 
and West is just what it was. Great Britain knew what their value 
to the Union was, when her forces endeavoured to seize New Orleans 
in 1815. 

In fine, my dear sir, I do not say we can conquer. I do say 
that mere conquest would be an absurdity in our relations if we could 
achieve it; for the Southern States would become Territories again, 
if anything, and go into the old connection, to go into revolt a second 
time. But we may subdue the revolutionary violence which has got 
the upper hand; we may hearten the friends of the Union in those 
parts to vindicate their own rights in the Union; and if we cannot 
do this, we may detach Louisiana, Florida, and the river portions of 
Mississippi, and Arkansas. If we do not, then I admit our dream of 
union and our national existence in its present form is gone. And 
such a shame, dishonour, degradation, in the sight of all the world I 

332 



1861] PERPETUITY OF THE UNION 

God forbid that I should live to see it! Three hundred and fifty 
thousand masters of slaves — not more — breaking down the power and 
hopes of twenty millions of freemen, for the most part the descend- 
ants of Englishmen ! You recollect Cowley's burst, in regard to 
Cromwell's usurpation : 

" Come the eleventh plague, rather than this should be, 
Come sink us rather in the sea. 

* * * * * * * * * 

In all the chains we ever bore, 

We griev'd, we sigh'd, we wept, we never blush'd before." 

This has been a long ramble, my dear sir. I have no time to make it 
shorter, for I am deep in a commission to provide for the poor families 
of the mechanics who have become volunteers. 2 Willingly do I devote 
any powers of mind or body which remain to me, in this truly sacred 
cause. My son Horace is better, but the typhoid so batters the fort 
that it takes a long time to repair the breaches. Mrs. Binney, I thank 
you, is in good general health, tho' entirely restricted to her chair 
and couch. 

The rebellion of the Southern States soon raised the 
question of the President's legal right to imprison suspected 
persons without commitment by a magistrate, or admission 
to bail, or a speedy trial. The first instance of such an im- 
prisonment was apparently that of John Merryman, of 
Maryland, charged with treason in connection with the de- 
struction of the railroad leading to Washington, in order to 
prevent the passage of troops. He was arrested on May 
25th, and taken to Port McHenry, near Baltimore. The 
next day a Habeas Corpus was issued by Chief Justice Taney, 
himself a Marylander, and with at least a very tender regard 
for the people of the seceded States and for the supposed 
legal rights of all who sought to aid the rebellion. The writ 



2 Mr. Binney was vice-president of this commission, and for a time quite 
active in it, until he was able to resign his duties to younger men. 

333 



HORACE BINNEY [JEt. 81 

was served, but General Cadwalader, in command of the 
fort, refused compliance, pleading the authority of the Presi- 
dent to suspend the privilege of the writ in such cases for 
the public safety. The chief justice then issued an attach- 
ment against the general for contempt of court, but the 
marshal was not admitted within the fort. Taney then 
announced that the marshal had a right to summon his posse 
and arrest the general by force, but that this would evidently 
be useless, and he soon afterwards contented himself with 
filing an opinion to the effect that under the Constitution 
the President had no power of suspension without express 
authority of Congress, which had not been given. A copy 
of this opinion was sent to the President, whose many worries 
it may have served to increase a little. 

A constitutional question, affecting the government's 
power to deal with treason, naturally interested Mr. Binney 
very deeply. He referred to it in a letter of June 24 to 
Dr. Lieber, and again at greater length two days later. 

(To Dr. Lieber.) 

Philada., 26 June, 1861. 
My last must have arrived in New York on the morning on 
which your last announced your appointed departure for Washing- 
ton. It contained nothing to be remembered, but a reference to a 
very good paper in the National Intelligencer of the 22d, on the sub- 
ject of Habeas Corpus. It is a paper of that class which gets the 
mind out of a rut. On some subjects the ruts of the mind are so deep 
that it is the hardest thing in the world to get out of them. It requires 
a pull beyond ordinary strength. This of Habeas Corpus as a uni- 
versal, ever-continuing right, is one of them ; though one cannot see 
any good reason why, if enemies or rebels suspend the operation of all 
other laws, a military commander should not suspend or resist the 
Habeas Corpus writ to bring about their restoration. I may make 
a remark on the clause in the Constitution, which the writer of the 

334 



1861] HABEAS CORPUS 

article does not make, — viz., that it is not in time of war that the 
suspension becomes allowable, but only in time of invasion or rebellion, 
— violent outbroken opposition to law, — facts which locally displace 
the operation of the laws. If the enemy and rebel do this, why should 
he be protected by Habeas Corpus in his liberty, to repeat it to the end ? 
In fine, the whole question, as I think I told you, is whether the com- 
mander-in-chief, in times of invasion and rebellion, may not make 
military prisoners, and keep them prisoners. As a war right, it seems 
to be very clear, when one gets out of the rut. . . . 

I am not without some apprehension of the approaching Congress. 
I am quite certain that the question of comparative strength and 
endurance between the North and the South is to be settled first and 
before any word of compromise is uttered. Projects of conciliation, 
come from where they may, and with what menace or cajolery they 
may, must be tabled, not committed, not debated. I know of nothing 
Congress can do to promote a good reconciling conclusion so much as 
to harness the Union as it remains with good strong materials, in 
the shape of men, arms, munitions, and finance, against the rebellion. 
They will be tenfold more wise than Felix in putting off compromise 
and conventions to a convenient season. I am sure St. Paul would be 
of my mind. 

My estimate of the Cabinet, as yet wholly unformed, will wholly 
depend on the scope of the measures they shall recommend. If the 
President and the Cabinet are men, they can have it as I would have 
it, if they wish. On this will depend whether we are to have the one 
division or many ; and if we have more, we shall have no lawful way 
of reducing them, as we have in regard to the one. Farewell hope, 
from that day ! She will be gone from the box. 

I know no man at this time who is fit for the office of chief 
justice. The man to fill it must appear before he is named, must be 
a messenger, or vox clamantis, as Marshall was, and as Taney was not. 
The drowning honour of that court is under the water; it must be 
plucked up by the locks. I would have the office kept open for the 
man. If the next chief does not lift the department up, it will go to 
the bottom. 

335 



HORACE BINNEY [^Et. 81 

My regards to Professor Bache. I fear his coast survey may 
suffer, but I hope not. It would best comport with my views if the 
rule of administration for the regular status of the country were 
changed as little as possible, and war against rebellion to be taken as 
a part of our daily vocation indefinitely. I believe we can live under 
it, at this end, and under nothing else. 



(To J. C. Hamilton, Esq.) 

Philada., 17 Aug., 1861. 

Not a line has come from the pen of either to the other since 
the — the — the — great mistake. 3 I shall never call it by any other 
name; nor do I think it possible to imagine a greater, for the name 
of Scott, for the success of our country at home, or for our character 
abroad. I would give one of my old arms to have prevented it. 
Though it has not shaken me in any of my opinions in regard to the 
necessity and perfect justification of our measures of war to the last 
extremity against this nefarious conspiracy, and of the continu- 
ance of them to absolute exhaustion, I have not, I may say, had one 
comfortable day since the event. I was apprehensive of it before 
it occurred. I apprehended it the more for the causes which I saw 
were leading to it. I could hardly perceive how an escape from 
it would happen; and yet I recoiled from the thought of it, as 
a thing that could not happen while Scott was commander of the 
army. 

It is of no use, however, to write about it. The thing is done, 
the mischief, great and incalculable, is done — the greatest of all, of 
which the marks are beginning to show themselves around us, around 
you, and everywhere, the outspoken combinations for peace, which 
is surrender, submission, discomfiture, disgrace. Cannot you give me 
some comfort? Is it possible that at such a time as this the same 
unruly popular will which has caused our decline in virtue for thirty 
years is to rule us in this war, to take the strength of our military 
leader, so that he cannot have his way, where his own judgment is so 

a The forward movement which ended in the disaster of Bull Run. 

336 



1861] EFFECT OF BULL RUN 

clear, but must yield to the ignorant, wilful, perverse and often cor- 
rupt voice of the press, the politicians, the office-seekers, the office- 
holders? Since I have lost my confidence in Scott's will, his deter- 
mination to have his way when he ought to have it, and have seen 
substituted for it the clamours of newspapers, and the ten thousand 
variant wills of the multitude, I positively am in the air, and have no 
foothold whatever. I think precisely as I did upon the whole question. 
I have not changed in any single particular, as it regards either end 
or means, but I feel as powerless as a paralytic, and I am beginning 
to impute to others what I feel in myself. 

Are we in Pennsylvania to be made as effete by political party 
as Maryland is ? Is New York to be the same ? I verily believe there 
is a body of men among us who are intent upon fixing upon New 
England the whole responsibility for the Civil War, and of recon- 
structing so as to cut her off ! Sublime conception ! Can we get along 
against the Saracens, with these eternal cavils about law, Habeas 
Corpus, and the Lord knows what, while these men are as much above 
law as the Five Points ever were? . . . 

(To Dr. Lieber.) 

Philada., 2 Sep., 1861. 

Every system of disaffection to the government, as far as I 
have detected it, proceeds from the Democratic leaven. Republican, 
Bell-Everett, American, old Whig, are generally true. It may be so 
also with the Douglas Democrat; but the Breckenridge Democrat, a 
blending of politics with Southern relations, is detestably false; and 
these men should not be permitted to speak their treason above their 
breath. The President wants no more opinions from anybody in 
support of his power. Let him act firmly, as he has acted within the 
month past, and the acquiescence will be universal with all whose 
opinion has the least tinge of patriotism or integrity. 

There seems to be no way of establishing a good paper among 
us, except by raising a sufficient capital from men of congenial opin- 
ions in regard to most public questions. A half-million of dollars 
would do this, and a hundred men might, I suppose, be found in New 

22 337 



HORACE BINNEY [Mt. 81 

York, possibly here, to furnish the sum, and to make a body of direct- 
ors to superintend the editor. The editor and writers must be paid 
ad valorem, and the subscribers must be willing to put the whole fund 
afloat, to establish the paper. If it cannot after that establish itself, 
and maintain itself, which is all that should be looked for, it is because 
our soil has not been worked long enough to bear this kind of plant. 
The main difficulty is in selecting the hundred, but from various 
points I think it might be done, and if some one versed in American 
politics would write down the heads or points of congeniality in 
general terms, but sufficiently marked to guard against deviation to 
any considerable extent, the thing might be easily tried. 

I should like to see you so employed or engaged. You have 
the principles, the knowledge, and the power of writing. In general 
our papers belong to parties, and parties in the main are as poor 
things as the papers devoted to them. . . . 

I should be glad to see an historical exhibit of the progress 
of nations in the usages of war. I am satisfied that all the improve- 
ments have proceeded from increased civilization, and that while mod- 
ern wars are generally shorter and more decisive than they formerly 
were, they disturb less than they did the progress of general 
civilization. 

The Saracens of the South go to every possible extent of fero- 
city and devastation, as in Missouri at this time ; not so much in 
destruction of life as in devastation of property. Loss of life will 
come next. Hear what Beauregard writes, that he will in a short 
time make us pay for all our devastations of Southern soil ! I should 
be glad if we had a firm foot upon it anywhere ; if only to show the 
South that devastation of either life or property does not belong to 
the government side of rebellion, or the present age. Generally the 
masses go free and the few guilty chiefs ransom them. After the 
contest is ended, the country gets sooner into joint, the less has been 
the dislocation. If we get to hanging each other, and burning or 
pillaging each other's houses, we shall go back two hundred years in 
civilization, and never perhaps in this continent return to the recent 
condition. 

338 



1861] THE CIVIL WAR 

But is it not clear that what the South shall persist in doing 
the North must do? This is to me an awful necessity, if it shall 
be one. 

(To Sir J. T. Coleridge.) 

Philadelphia, 3 Oct., 1861. 

I am heartily thankful to you for your letter written at the 
close of the month of August. Though this horrid war brings anx- 
ieties upon all or most of us, and some very painful ones upon myself 
especially, I am not so engrossed by them as to forget my " English 
correspondent," or to pass without regret an interval of any length 
without hearing from him or of him. The last interval has appeared 
rather long, as neither myself nor my son Horace could answer our 
family inquiries in regard to you and yours for some months. We 
feel as if we had a sort of family connection with you, — are very 
proud of it, — and mark its interruptions with something like the 
same uneasiness which has attended the closure of intercourse since 
June last with our blood and marriage relatives in South Carolina and 
Louisiana. This reference will shew you the nature of some of the 
troubles that are upon us ; and, I say it with great truth, the letters 
of yourself or your son to me or to Horace will be an alleviation of 
them. I must add, however, for myself, that not being of a very 
anxious temper, and having a firm confidence in the Providence of 
God for the ultimate well-being of those who trust in Him and en- 
deavour to honour Him, by striving to do right and to be right, I 
habitually suppress anxiety, and generally succeed when I find myself 
in the path of my duty, as upon reflection I think it is marked out 
to me. 

Upon the subject of this Civil War, as other nations are enti- 
tled to regard it, of this wholly inexcusable rebellion, as we call it, I 
have made up my mind thoroughly, as all the moderate men I know 
have done; and this, after cutting away as much as possible every- 
thing that could disturb my judgment. Let me note my conclusions 
as in a brief for argument in a court of enlightened conscience. 

1. That the secession was the work of political ambition, aim- 
ing to overthrow the Constitution of the whole country, and not merely 

339 



HORACE BINNEY [JEt. 81 

to collect the present slave States under a separate constitution. The 
danger was and is, to make the institutions of the country conform 
to the interests of slave labour, its indefinite propagation and estab- 
lishment. 

2. That this end did, in the judgment of those whose scheme 
it was, require military means, to be used offensively, and to the whole 
extent that should be necessary to suppress opposition. 

3. That the field of their work was not to be within the slave 
States, but beyond them; and consequently that the war was to be 
upon us, while their slaves would be uninterrupted in their labour; 
and their first assault was to be upon Washington to unseat the Con- 
stitutional government, and to give the prestige of this position to 
their new government. 

4. The frauds in their progress, whether by aid of the Secre- 
taries of War, Treasury, Navy, or Interior, during Buchanan's time, 
and with his connivance, and whether by taking the funds of the 
government, or its arms, or assisting to break down the credit of the 
Treasury, are mere aggravation ; but they marked the dangers I 
impute to them as clearly as their instant uprising, the seizure of forts, 
and the creation of an army and its incessant progress towards Wash- 
ington during Buchanan's administration, when they knew, and had 
known for months, that the Lincoln administration, whatever its de- 
signs, could do nothing to injure them if their own Senators and 
Representatives appeared in their places in Congress. 

These, my dear sir, are my convictions; and the result with 
me is that the free States had, and at this time have, no alternative 
but to oppose them by military force until they are repressed. 

I think that in England a great many have not sufficiently 
considered our case. There are several stages in such a contest, and 
there are considerations appropriate to each. In all of them the 
honour of a people, an inestimable possession, I need not say how 
composed, is of first importance to ourselves and in the eyes of the 
world. It can never be sacrificed by a nation to save property or life. 
In some of the stages, this being safe, political considerations may 
more safely rule. 

340 



1861] THE CIVIL WAR 

We are now in the very first stage, and the contest of our gov- 
ernment is for life — for the liberty of exercising any free choice at 
all as to the future. We must repress them, or we perish as a nation. 
Can the sagacious statesmen of Europe advise us, at this time, to offer 
the Southern slave States what they have asked — or anything — now 
that their armies are clutching at the seat of our government? The 
thing is simply impossible to a people that have any sense of honour, 
not to say any attachment to their Constitution. Mr. Dallas said 
truly in his late speech, " Fight we must," and not a man in the free 
States, who has any sense of national honour, thinks otherwise. If 
we cannot repress them, no time will remain to us for anything but to 
submit. But if we can repress them, and shew that they cannot gain 
their object — which is the destruction of our government — by arms, 
there will be time for reason, for compromise if practicable, for any- 
thing that will conduce to permanent peace and concord. 

I expressed, in my last letter to you, some of my own views, 
now very common, of what the free States could not agree to and live 
united among themselves. But this was all speculation. At present 
we have before us not the superinduced, but the original purpose of 
the slave States, to destroy our freedom of action by military force, 
and the practical question, Shall zee fight or yield ? I must say in 
regard to this, my much respected correspondent, that I have no 
anxiety; not that I have no apprehension. I shall meet the worst 
conclusion that present resistance by arms can bring us to, without 
having uttered a word of compromise to men of such designs, demon- 
strated by such overt acts, as calmly as I should, I hope, meet my 
own death in the most sacred cause. . . . 

I beg my regards to your family. The state of your health dis- 
turbs me ; my own is reasonably good ; Mrs. Binney's, as it was. 

During the succeeding months Mr. Binney continued to 
think and read on the subject of the Habeas Corpus, and to 
discuss it in other letters to Dr. Lieber. On August 26 he 
mentioned the prospect of his publishing his views on the 
subject, and further correspondence ensued. By the latter 

341 



HORACE BINNEY [JEt. 81 

part of November he had substantially completed the pro- 
posed paper, as the following shows: 



(To Dr. Lieber.) 

Philada., 22 Nov., 1861. 

" My tidy logic !" — that is to say, my short-legged logic, I 
suppose, my three-legged syllogistic, my short-gown and petticoat 
logic, with a white apron before it, to hide spots on the under garment. 
Very well, I am more than satisfied. But you are to have in a short 
time a specimen of my long-legged logic, perhaps not tidy, perhaps 
with spots not hidden, visible enough to eyes like yours, the whole 
figure smelling perhaps of apoplexy. The archbishop, I think, had 
no notion of it, — perhaps few archbishops have. I am sure that I, 
who am no archbishop, have not. Still the smell may be on the gar- 
ment. I assure you it has passed through the fire, and if the smell 
of smoke is not on it, there is a miracle. 

That Habeas Corpus letter 4 you wot of, I burned, and out 
of its ashes comes a phoenix, forty-six feet high, that is to say, feet 
as long as one of my quarto pages of manuscript, and looking rather 
superciliously on the ashes of its poor mother ! 

Let me say, however, that it is a block of the old chip, and no 
other wood, only rather fuller of sap, and wanting a staff to support 
it less than the mater cinerosa. The staff of many others, if they 
get to see it, will doubtless be laid on its neck and shoulders. For 
be it remembered that the question of Habeas Corpus is no longer 
a question of Constitution or law, but has become a question of 
Lincolnism. 

Still I think my bird sings a new song, or rather she sounds 
a new note. I confess I think it is musical, and I hope you will. It 
is a breve, the longest note in music, and for that reason, no doubt, 
called a breve, by a sort of antiperistasis, a figure that makes water 



* A letter to Dr. Lieber, written in July or August, containing Mr. Binney's 
full statement of his views on the subject. It had been returned to him, on his 
own request, for revision. 

342 



1861] HABEAS CORPUS 

boil in a man's mouth if he stands long enough upon ice, a pretty 
figure certainly, — the ice, the man, and the boiling water! If the 
world hears of it, they may think I or my bird is that figure. You 
shall see and say. . . . 

{To Sir J. T. Coleridge.) 

Philadelphia, 4 Dec, 1861. 

I have received with the greatest satisfaction your delightful 
letter of 21 Oct., and the shorter one of 14 Nov. In regard to the 
extract which was sent to the Guardian I have not a word to say. I 
may trust myself implicitly to you; and can only be thankful for 
your using anything I may write, to promote a kind and just feeling 
in your country to my own. Perhaps I would have omitted the first 
paragraph of the extract, as it speaks more of myself than I should 
have done, if something in your August letter had not drawn it from 
me. The extract was printed in our newspapers from the Guardian, 
with an editorial remark which indicated the authorship in a way 
that my friends did not misunderstand. 

I send you by the steamer the message of the President to 
Congress, thinking you might possibly, or perhaps your son, wish to 
see the whole of it. It is a pretty good photograph of the writer, — 
not handsome, nor even genteel, but plain speaking, sincere, and rather 
sensible, we think. The character of this President has come to be 
received by nearly all among us (the free North and West) as very 
frank, unaffected, and honest. I recollect no President, who was so 
little known when he came into office, who so soon, and in times of vast 
difficulty and very general self-seeking, as well as of great devotion 
to public service, has acquired a very full confidence of the people for 
these qualities. He seems to be an entirely sincere and honest man. 
He does not appear to think much of himself, but is disposed to give 
all he has, and is, to the country ; and to shew himself always in his 
own clothes. Perhaps he might get handsomer ; but we have been so 
much annoyed by pretentions in some of our Presidents, that we are 
not sorry to see a little more of the undress or natural style. I do 
not know how it will strike England and France, who shew such high 

343 



HORACE BINNEY {Mt. 81 

breeding in matters of this kind ; but we like it at this perilous time, 
when suspicions of the integrity and plain-dealing of that officer would 
produce great disturbance. 

The message is very discreet in regard to foreign relations, of 
which it says nothing in particular. It has therefore nothing to 
explain. The correspondence, which is to some extent given to Con- 
gress, will, when it shall be printed, give us a better notion of their 
position. In one matter, the arrest of a British vessel in June, upon 
the ground of breach of blockade, and afterwards released, the mes- 
sage is distinct in recommending compensation for the delay, and 
upon a right principle. 

Two or three rather important events on our side will have 
come to your knowledge before this note can reach you. The landing 
of our troops in Port Royal, at the junction of Georgia and South 
Carolina, and the bombardment and capture of the forts, is quite 
important, as transferring active operations of the Union to Southern 
States on the coast. The seizure of cotton and the burning of it by 
the planters to avoid seizure are not much to my taste, but they are 
in character with the operations by and against the secessionists 
elsewhere. We may suppose and regret that such things will go on, 
on both sides, from worse to worse. 

Another event is the taking of Mason and Slidell, ambassadors 
seeking assistance, from an English ship by an American ship-of-war. 
For personal reasons, the two men, Mason, of Virginia, having been 
for many years very obnoxious to the North, by his movements and 
speeches in the Senate, and Slidell, an old offender in the same way 
when he was in the Senate, and an egregious filibustero against Cuba, 
have been welcomed with great joy to one of our forts. I had rather 
they had gone free. The question between the countries will be settled 
by the two governments in the usual way. Many of our people are 
rather anxious about it, but I have told you I am not in that way. 
I hope we are right, and if we are not, that is to say, if the President 
thinks we are not, I have no doubt he will say so, without fear of 
anybody at home. It is desirable for us to have as few questions with 
any foreign government as possible during this rebellion; but they 

344 



1861] THE CIVIL WAR 

will come, and if our first aim is to get the truth, we shall probably 
get it, and then we may abide it with safe conscience either way. 

We are likely to have a very troublesome, perhaps a dividing, 
question among ourselves as to the slaves who come into our lines. 
Various opinions are broached already in Congress, as to emancipation, 
confiscation, and the like ; but they have had no development as yet. 
I really hate that word confiscation, and have hated it through my 
life. It is a word that carries war and a spirit of rapine over into 
peace, and makes peace a mutilated and suspicious intercourse between 
the nations who practise it. Virginia already has unrelentingly passed 
it against the property of Northern residents. The United States 
have done nothing of the kind except as to ships or vessels held in 
part ownership by South and North. I hope we shall keep our hands 
free from this stain ; but I fear. 

God bless you, my dear sir, and your family, and preserve to 
you and them, and your country, the united condition in which you 
now live. 

The reference to the Slidell and Mason affair, in the 
above letter, is very guarded. As a matter of fact, when 
Mr. Binney first heard the news of their being taken, he 
shared the general satisfaction, but literally for a moment 
only. While he was speaking about it a doubt seized his 
mind. He ceased talking and withdrew to his office. After 
consulting his books on international law he returned to the 
drawing-room, where some of his family were, and said, 
regretfully but decidedly, " We shall have to give them 
back." 

(To J. C. Hamilton, Esq.) 

Philada., 21 Dec, 1861. 

There has been such a gap between our letters, probably by 

my fault, that I am determined to fill it up by wishing beforehand a 

" Merry Christmas" to you and to all your family. And I do it most 

heartily, not in the vulgar sense of laughing or causing laughter, but 

345 






HORACE BINNEY [^Et. 81 

in the old sense of sweet, pleasant, agreeable, coming from a thankful 
heart. We have a good deal to be sad about in contemplative moments, 
no doubt, — on public accounts, many, on private accounts, some, as 
everybody has ; but in the main you and I have many causes of thank- 
fulness, looking at the whole scene, causes on the return of that day 
to make the heart leap up and the cheerful voice to chaunt them. 
Therefore I again wish you a " Merry Christmas," and have no doubt 
you wish me the same. 

I cannot be persuaded that England is going to kick up a 
serious rumpus about our taking Mason and Slidell out of one of 
their commercial vessels. I think she must be too proud to make a 
pretext for war, or to pick a quarrel with us, when she has no real 
ground. Her character, her prestige all over the world, would be 
terribly stained by it. In this country she would never regain it, nor 
retain it anywhere. She cannot afford to do that. Her ministry 
may be pressed by a vis a tergo to make a fuss and bluster a little at 
home, but that is easily modified abroad, and the whole matter toned 
down to the footing of negotiation and explanation. 

Halleck, I think, is your son-in-law. I like his course both 
first and last. That is to say, his washing the slave matter from his 
hand at first was good, and his readiness to execute orders was good 
afterwards. I detest the whole work of confiscation, and would do 
nothing with slavery, except as a war measure under the commander- 
in-chief. Slavery is dead for all the harm it can do to us. Let us 
deal with it with some regard to the Union proprietors at least, and 
to the slaves themselves. The end, if it comes, and when it comes, 
will arrange matters on the proper footing. . . . 

Early in December the paper on the Habeas Corpus was 
complete, and Mr. Binney was able to critically review his 
work. The seriousness of the question naturally made him 
cautious, and his regard for the Constitution did not dispose 
him to favour any loose or merely popular construction of 
its language. At first he thought he might have gone too 
far in that direction himself, that the judicial spirit in which 

346 



1861] HABEAS CORPUS 

he desired to treat the matter had been overcome by the wish 
to make out a case on the government's side. He realized 
that he was entering an arena of conflict, and foresaw prac- 
tically all the objections which would be made to his view, 
at least all those which would deserve any attention. Ulti- 
mately, however, he condemned them as too narrow and 
technical, and returned to his original intention of publish- 
ing. The pamphlet bears date December 23, and appeared 
very shortly afterwards. 

Some weeks after Merryman's arrest the Attorney- 
General, Mr. Bates, had given an opinion to the effect that 
the President, as the executive department of the govern- 
ment, sworn to " preserve, protect, and defend" the Consti- 
tution, necessarily had the power to arrest and imprison the 
suspected accomplices of insurgents. As to the Habeas 
Corpus clause, he said, " Very learned persons have differed 
widely about the meaning of this short sentence, and I am 
by no means confident that I fully understand it myself." 
Whatever that clause might mean, however, he was confident 
about the President's power to detain suspects, so much so 
that he thought it " not very important whether we call a 
particular power exercised by the President a peace power 
or a war power, for, undoubtedly, he is armed with both." 

In the North American Review for October, Ex-Chief 
Justice Parker of New Hampshire, at that time Royall 
Professor of Law at Harvard, had argued that the existence 
of martial law involved the right to detain persons suspected 
of complicity in insurrection, and that, as Fort McHenry 
was under martial law, the writ could not reasonably com- 
mand obedience there. Other writers had held that the 
President could suspend the privilege of the writ by virtue 
of his military power as commander-in-chief. 

To Mr. Binney's mind the Attorney-General's position 

347 



HORACE BINNEY [JEt. 82 

was wholly unscientific and untenable, especially as the Con- 
stitution had provided expressly for the suspension, under 
certain specified conditions. He agreed with parts of Judge 
Parker's article, but considered that his views as to martial 
law went a great deal too far, and that it was more danger- 
ous, more inconsistent with the whole spirit of the Constitu- 
tion, to sustain the suspension as an exercise of military 
power or of martial law, than even to deny all power of 
suspension without express authority of Congress. The 
privilege of the writ of Habeas Corpus being a purely civil 
privilege, he regarded the power of suspension as a civil 
power, just as completely so as the power to arrest. The 
exercise of the power of suspension, being confined to times 
of rebellion or invasion, was of course intended to aid the 
suppression of rebellion or the repelling of invasion, and 
was in that sense supplementary to the military power, but 
still entirely distinct from it. He therefore held that the 
power of suspension must result from the Habeas Corpus 
clause alone, and that the only question was whether the 
Constitution intended this power to be exercised by the 
President or by Congress. 

As this question had to be answered by inference only, 
any convincing solution of it required very close reasoning, 
and such Mr. Binney's reasoning undoubtedly was. He 
pointed out that the suspension contemplated was not a sus- 
pension of a Habeas Corpus act, such as Parliament had 
at times effected, but merely of the privilege of the writ in 
individual cases, so that the English authorities did not 
apply; that when the clause was before the Constitutional 
Convention it had been proposed to provide for a suspen- 
sion by the Legislature, but that this was not agreed to ; that 
the words of Chief Justice Marshall, in Ex parte Bolman, 
relied on by Taney, were altogether obiter and of no 

348 



1862] HABEAS CORPUS 

authority; and that the actual suspension of the privilege 
in any given case would have to be the act of the Executive, 
whether Congress authorized it by statute or not. His con- 
clusion was that the Constitution, having stated the only 
conditions under which the power could be exercised, ren- 
dered Congressional action superfluous, and that the inten- 
tion was to place the power in the President's hands. 

From the nature of the case no conclusion could be stated, 
on either side, with positive assurance. The most that Mr. 
Binney could say was that it was " both Constitutional and 
safe to argue" that the power was so placed. He could not 
have expected to command universal assent, and the publica- 
tion of his views was the signal for a pamphlet fusilade on 
the part of those who differed from him. Some of these 
writers were outspoken in support of the energetic suppres- 
sion of the rebellion, while others were well-known advocates 
of the right of secession. Some deserved to be answered 
seriously, but this can hardly be said of all. A few of their 
pamphlets had already appeared before the date of the fol- 
lowing letter. 

{To Sir J. T. Coleridge.) 

Philadelphia, 17 March, 1862. 
I thank you cordially for your letter of the 12th February, 
and for the suggestion of your doubts upon the reasoning of the 
tract which my son sent you. No man, I think, can write from con- 
viction or persuasion of the truth without being ready to welcome, 
from any quarter, and especially from a friend, suggestions of reason- 
able doubt or dissent; and it was from this persuasion, tho' rather 
unwillingly, that I wrote, and after inviting the close attention and 
criticism of some professional friends, at their solicitation, printed the 
tract upon the " Privilege of the Writ of Habeas Corpus under the 
Constitution." I did not rely implicitly upon this solicitation, for I 
knew how deceptive such expressions are in general ; but having their 

349 



HORACE BINNEY [Mt. 82 

concurrence in the answers which I thought might be given to certain 
objections which I stated to them, among which is the first suggestion 
in your letter, the state of the public mind induced me to print, with- 
out answering them by anticipation, and to leave them, and any others 
which might appear, to a reply. The first and principal doubt of 
your letter has been in one instance suggested and argued here, tho* 
not with as much force; and I shall give my answer to it, if my life 
and health are spared, and will take care that a copy of my answer, 
whatever it may be, shall be sent to you. 

I had doubts myself whether the profession in England would 
be sufficiently familiar with a peculiarity of our Constitution on which 
the answer to the objection turns, to avoid making it; and stated 
the peculiarity in a recent letter to your son, who was so obliging as 
to write me, in return for some book or tract which my son sent him 
with my inscription on the title-page. I will now say no more about 
the objection than that Chief Justice Taney, in his opinion on Merry- 
man's case, Mr. Justice Story in his Commentaries, and every writer 
whose opinion I had previously seen, had deduced the authority from 
the Habeas Corpus clause, and not from any general power of sus- 
pension in Congress, of which that clause is a mere restriction. I am 
persuaded that no such general power exists, or, before the clause 
was introduced, existed in Congress, and that the clause is not merely 
restrictive, but conveys all the power that either Congress or the 
President has upon the subject. Certainly the clause gives the author- 
ity indirectly and by inversion; and a reason for it may be found in 
the condition of the General Convention, a body as full of divisions, 
jealousies, devices, and artifices to carry their party points as any 
Congress we have ever had, and perhaps more so. The course most 
favourable to the end proposed by the mover of the clause was to 
disaffirm the suspension power generally, which the State rights party 
hold to be the condition of things under the Constitution, if the excep- 
tion was not affirmed, and to affirm the exception indirectly. 

The limitation of the legislative power under the Constitution 
(nothing being vested in Congress but what was therein granted), 
the principles asserted in the Declaration of Independence and in the 

350 



1862] HABEAS CORPUS 

Bills of Rights in the States, the character of the Articles of Confed- 
eration, and the Preamble to the Constitution, shew to the American 
mind that Congress would have had no authority from its granted 
powers to impair personal liberty discretionally, or its securities by 
the common law, or by the fundamental principle of every free gov- 
ernment, except by this clause; and that to leave it out was to leave 
the government without a power of suspending the privilege of Habeas 
Corpus in rebellion or invasion, whatever the public safety might 
require. The existence of any exception was therefore the point in 
question, principally ; the body on which the power of the exception 
was placed, secondarily or subordinately. 

I had thought, indeed, that by the principles of the English 
Constitution, properly speaking, Parliament had no such legislative 
power as to imprison a man and hold him imprisoned without trial; 
and that this was authorized by Parliament, by an imperial power for 
the public safety, in times of public danger and necessity, as it alters, 
when it becomes necessary, the succession to the crown, or makes an 
acknowledged change of the Constitution; and that it secured the 
parties to the unconstitutional wrong of arresting and detaining sus- 
pected persons without trial, by bills or acts of indemnity. In those 
acts, called suspensions of the Habeas Corpus Act, there is no word 
of reference I believe to that Act, nor do Parliament treat the Im- 
prisonment Acts as a justification by the Constitution and law of 
England of what is done under them. They authorize the wrong, and 
discharge the right of complaint absolutely. Such, at least, was my 
impression. Congress, I suppose, has no such powers by the eighth 
section of the first article, nor any powers of the kind, unless they 
are given by the Habeas Corpus clause in the ninth section. How 
far these powers extend I pretend not to say. Unless the clause in 
the Constitution is both a power and an indemnity to those who exer- 
cise it, our condition is remarkable. I will not, however, weary you 
at present with any more on this point. . . . 

You may think it strange that at my age, I, who have never 
been a politician, should have concerned myself with such a question ; 
but neither the public nor our friends will permit us to take off our 

351 



HORACE BINNEY \_Mt.S2 

harness merely to please ourselves. Had not the tract appeared to 
quiet at a critical moment the minds of a good many patriotic men, 
and brought me a great many letters from professional men and others 
approving of it, including one judge and one eminent chief justice, 
before whom the question cannot come judicially, I should have 
thought that my friends had been too importunate and myself too 
acquiescing. The chief justice wrote to me that the tract had changed 
his opinion, as he formed it after the opinion of the Attorney-General 
had been presented to Congress. But all this is very little to the 
purpose. 

Our awful civil war goes on, and our most prodigal sacrifices 
of life and treasure. Some among us say that the crisis is approach- 
ing. I have no opinion about this. The crisis of such a disease, how- 
ever it be passed, is not the cure, not the assurance of it. The disease 
may leave a poison behind it, and kill in another form by decay after 
the fever has passed away. God only knows what is to be the end of 
it; and to His own providence old age at least is wise in submitting, 
as I do, with prayers for His protection and mercy. 

We feel, I think, more kindly towards England since the settle- 
ment of the Trent affair; and perhaps Mr. Seward — I ought to say 
the President, for he is not thought to be a cipher in such matters — 
did well in not announcing too promptly his purpose or inclination 
to the people. He gains daily upon all of us, in the great attributes 
of integrity, a love of justice, clear good sense, untiring industry, 
and patriotism. He also is thought to know the people, which is a 
great matter, as he came in without the reputation of being able to 
lead them by command. 

I ought to have said that I have not heard of his making any 
proclamation on the subject of the Habeas Corpus, nor do I know 
how his warrant or warrants may describe his purpose, nor even 
whether his action is civil or military. It has probably been both 
ways. Congress is now quiescent, perhaps acquiescent. How it may 
be a few weeks hence I cannot say. There are said to be two parties 
in that body, one of which is thought to be disposed to bring on 
emancipation forcibly. What its strength is, is unknown to me, and, 

352 



1862] HABEAS CORPUS 

I learn, not generally known. The President it is said is not so 
disposed. . . . 

P. S. — I will place in a postscript my serious doubt whether, 
if the President has not the power to suspend the privilege of the 
writ, it will ever be suspended in this nation. To deny his power is, 
I more than doubt, to extinguish the power practically. That ques- 
tion, when brought before Congress, is brought directly before the 
universal people. 

(To Br. Lieber.) 

Philada., 20 March, 1862. 

. . . Burnside's affair seems to have been really great, not 
more in the achievement than in the heroic struggle and fight. I 
believe that before this time the miserable taunts of the chivalry 
against Northern and Western courage must have come back to them, 
and brought a ghastly sinking of spirit. I was glad to see those 
Massachusetts men flashing their bayonets in the faces of the enemy 
until they retired, which they certainly did not " eyes front" to the 
bayonets. 

There has been quite a galaxy of pamphlets against me from, 
I understand, a part of the bar. I have no knowledge of the parties 
except in one or two instances. They are said to be of secession dis- 
positions, and of that portion of the Democratic party which voted 
for Breckenridge ; and as far as I know them, it is true from internal 
evidence. I have read nearly all, I suppose, to find if there was any 
political or constitutional law in them, but I find only this : ( 1 ) That 
the clause gives no power, but is a mere restriction, and that but for 
the clause, Congress would have unlimited power to suspend the writ 
at any time. (2) That in the State conventions delegates said the 
power was in Congress, the point not being whether President or Con- 
gress, but whether the United States ought to have the power, or only 
the States. (3) That the bills of rights of the States say no law 
shall be suspended except by legislative authority. The first is fla- 
grantly wrong, and makes Congress constitutionally able, under the 
power to organize the inferior courts, to disorganize them. The 
23 353 



HORACE BINNEY [JEt. 82 

second is setting up impressions formed on one point to decide the 
construction on another when it is mere talk either way. The third 
is founded upon the new principle that the Constitution is not as 
strong as the Legislature. 

I shall be glad to hear of any others, and will in due time notice 
them. I rather infer that the number of pamphleteers is the result 
of a combination to work the question up for party use. I shall not 
notice them, but their points, if I find any. 

As foreshadowed in the preceding letters, Mr. Binney 
published in April a second pamphlet on the suspension, 
analyzing and answering the objections which had been made 
to his views. The most forcible objection was that of Judge 
Nicholas, of Louisville, and some others, that the Habeas 
Corpus clause did not give the power of suspension to any 
one, but merely limited the power granted to Congress by 
other provisions of the Constitution. Unfortunately for 
Judge Nicholas, however, he had no very exact idea of the 
Congressional power, which he thought included that of 
suspension, and he vaguely pointed to a power " to regulate 
the courts." As Mr. Binney pointed out, the Constitution 
gave no such power, but merely a power " to constitute tri- 
bunals inferior to the Supreme Court," a very different mat- 
ter, which could not possibly include the suspension of the 
privilege of Habeas Corpus. 

In his younger days, when the country near Philadelphia 
was better stocked with game birds than now, Mr. Binney 
had been quite fond of shooting, and it was probably some 
memory of pleasant tramps with dog and gun that suggested 
the words with which he closed his demolition of Judge 
Nicholas's objection. 

It profits not, therefore, the covey of reviewers from the Phila- 
delphia bar, which has been flushed and put upon the wing, by the 

354 



1862] HABEAS CORPUS 

Tract on the Privilege of the Writ of Habeas Corpus, to look about 
for some other branch of Congressional power to alight upon, with 
more security than the Louisville reviewer. There is no choice left. 
All the branches are cut away by that mandate of the Constitution 
which ordains the constitution of tribunals to administer the judicial 
power. The question of the writ of Habeas Corpus is a question of 
judicial power. No power of Congress can mutilate that department. 

(To Dr. Lieber.) 

Philada., 17 May, 1862. 

What is the use of logic? Would you believe that for all my 
pains I get an answer from Judge Nicholas, which amounts to this 
and no more: If Congress, without the Habeas Corpus clause, had 
taken away or not given the Habeas Corpus, how could the judiciary 
have helped it? God save the poor man who wastes lamp-oil upon 
such heads ! He does not perceive that this reduces it to a question 
of force. I might ask him, If the President will imprison without 
law, how is Congress to help it? 

I think it material to remark that if any one infers from my 
pamphlets that I think Congress cannot indemnify the parties to the 
wrong, he goes in advance of me. Without the Habeas Corpus sus- 
pension power, they certainly cannot do it. That I have denied. The 
power to indemnify may belong to the dictatorial or imperial power 
of England ; though in its indefinite extent it is an exorbitant wrong. 
But without the Habeas Corpus clause it would not belong to the 
Federal government at all. With that clause, however, if Congress 
has the power of suspension, and not the President, why does not the 
ratihabitio cover the whole wrong, for the President's protection? It 
strikes me that this matter ought not to be neglected by the President's 
friends in the two houses, while they are the majority. Party is in- 
finitely rash and bitter at times, and our parties are like the tides in 
the Euripus, which ebb and flow seven times a day. No one can 
explain the present phenomena of party in the houses; at least I 
cannot, and will not drown myself in the strait, as they say Aristotle 
did, because he could not explain the tides in it. In general the thing 

355 



HORACE BINNEY [iE-r. 82 

is not worth hanging for ; but I should be sorry to see the President 
come to grief between a bitter judiciary and a bitter jury. I believe 
him an honest man, and wish him well. 

Is your son Hamilton nearly well, and Norman, where is he? 
Mustn't we have a great fight near Richmond? It is said General 
Scott thinks it will be done without. 

P. S. — Unless we fight and whip in both places, Corinth and 
Richmond, England and France will come in, I fear, with their moral 
intervention. So I guess ; I will not condescend to fear it. 

As a practical matter Mr. Binney thought it very de- 
sirable that his view should prevail as to the President having, 
under the Constitution, the power to suspend the privilege 
of Habeas Corpus, because it seemed very unlikely that Con- 
gress would develop enough resolution to risk unpopularity 
by authorizing, even in times of rebellion, the suspension of 
one of the safeguards of civil liberty. He feared that unless 
the President could suspend, the privilege of the writ could 
not practically be suspended under any circumstances what- 
ever. After the war had been going on for two years, how- 
ever, and the election of 1862 had shown, on the whole, an 
endorsement of the administration, the Act of March 3, 
1863, 5 was passed, authorizing the President, as long as the 
rebellion lasted, to suspend the privilege of the writ in any 
instance where in his judgment public safety required it. 
The same act required that the names of all persons so held 
should be certified to the United States Court of the Dis- 
trict, and that unless the prisoner were indicted by the next 
grand jury he should be discharged. This regulation of the 
President's exercise of the power of suspension was probably 
reasonable in itself, but the passage of the act did not affect 



6 12 Stats., 755. 
356 






1862] HABEAS CORPUS 

Mr. Binney's conviction as to the constitutional question, and 
two years later he took the matter up again. In this con- 
nection it should be noted that he strongly disapproved of 
so much of the President's proclamation of September 24, 
1862, as extended martial law and suspension of the Habeas 
Corpus to military arrests for discouraging enlistments, or 
for other disloyal, but not legally treasonable, acts. This 
proclamation went far beyond anything that Mr. Binney's 
pamphlets had justified, but he refrained from any public 
expression of his views, as he thought it the duty of loyal 
citizens not to hamper the administration by protests, al- 
though it might make mistakes or even exceed its legal 
power. 

(To J. C. Hamilton, Esq.) 

Philada., 4 Aug., 1862. 
. . . You ask me if it is not a crisis. Perhaps it is; but I 
think we shall go through it, if the government will be firm in its 
demand, without fearing or addressing the political disaffection which 
is trying to disturb the country, as if the question were a mere ques- 
tion of party. This spirit must be put down, and it can only be put 
down by not truckling to it, but by denouncing and counteracting it 
with decision. To suffer men in our States having loyal governors, 
and they, with the Federal government, holding in their hands all 
the military force and all the law, to deter or dissuade men from en- 
listment, on any pretence or ground whatever, would be criminal weak- 
ness. The offence is treasonable. If it is regarded as within the 
liberty of public or social opinion, and therefore to be tolerated if 
expressed indirectly in the form of argument, the mistake will be 
fatal. The call for volunteers the second time has not met my appro- 
bation, nor the effort to draw the bounty from subscriptions. The 
excuse made for Governor Curtin, that there would be a factious 
opposition to bounties on the eve of the next election, does not meet 
the case. There should in my mind have been an immediate resort 
to the draft, and a great effort to sustain it by public meetings, with 

357 



HORACE BINNEY [^Et. 82 

subscriptions to aid the supply of substitutes for such as would have 
been unable to find them with their own funds, and yet were so essen- 
tial to family dependents as to make their departure on service ruin- 
ous. This would have been my plan, — law for the enrolment and 
draft, subscriptions for relief from severe exceptional pressure by 
the lot. We must come to this, as the enemy use it with the utmost 
rigour, and if the attempt should be made to break down the law, 
ordinary firmness and the law will break down those who make the 
attempt. 

We want the government at Washington to let the people know 
and feel that neither the defence against the rebels nor the mode of 
making it as the law authorizes it to be made shall be made the subject 
of action by traitorous citizens, as if it were peace and not war that 
was the issue. I am not going myself to become an abolitionist, which 
I never have been ; but if within the Act of Congress the government 
shall use slaves for military labour, and freedom is the result, I shall 
not complain of it. The negroes are a part of the force of our enemy. 
I would dare, as freely as the Act of Congress permits, to use that 
force against the enemy, and so I suppose General Halleck means 
to do. We shall be whipped as sure as fate, if we fight with one of 
our hands tied behind our backs and the other one with a buff or 
boxer's glove on, while the enemy uses both hands and feet of all 
colours, and our fellow-citizens at our homesides are permitted to 
discourage our people from doing what the law requires. Let us not 
only be men ourselves, but require our neighbours to hold their traitor- 
ous lips in silence ; and if when drafted they refuse or desert, to treat 
them with the length of the law, and the strength of the military arm 
to enforce it. This I hope will overrule the crisis ; and though I have 
not the least authority to say anything on this head, I believe the 
people will support the government against any party. 

Dr. Lieber had two sons in the Northern army, one of 
whom had already lost an arm in battle, but his oldest son 
had remained in the South when the family removed to New 
York some years before the war, and had ultimately espoused 

358 



1862] THE CIVIL WAR 

the Southern cause. At one time Dr. Lieber had heard that 
he was wounded, possibly a prisoner, and Mr. Binney had 
an inquiry made among the prisoners in Philadelphia. 
Finally it was known that the young man had fallen, and to 
this the next letter relates. 

(To Dr. Lieber.) 

Philada., 5 Aug., 1862. 

You and your wife have my perfect sympathy in the suffering 
that has come to you from the event in Richmond. I feared it was 
foreshadowed by the considerable interval that had elapsed since your 
preceding letter. 

I do not mean to examine or to question the special ground 
of regret which you intimate, in the occurrence of such a loss while 
in the Confederate service; but there are considerations which must 
not be overlooked while we are regarding it in the personal or family 
relation. His connection with that service may have been involuntary 
in the personal, and even in the moral sense. He may have acted 
under a generous impulse of gratitude for public benefits conferred. 
He may have sincerely entertained the belief, which so many in the 
same quarter have publicly declared, that the object of the North was 
to place the slaves above their masters, and to tear up the social con- 
ditions of the South by the roots. With such a conviction, who would 
have thrown at him at all, let alone the first stone? In such a broad 
and deep division of the nation as this is, with ten thousand times 
ten thousand voices at the South uttering the same conviction, many 
of them no doubt falsely and hypocritically, but many of them in a 
good heart, it is impossible to adjudge the personal condition of a 
man by his outward public acts. They may have been a demonstra- 
tion of the highest personal virtue, such as all men should love, and 
not that dark offence which, in the general public relation, the law 
denominates it. Derwentwater, in the '15, almost makes one in love 
with treason. The truth is, that treason or rebellion, though the 
highest offence in the law, and sometimes in the personal relation the 

359 



HORACE BINNEY [Mt. 82 

basest, has no necessary baseness personally. The provision of the 
common law which attaints the blood, and despoils the traitor's chil- 
dren of their bread, does it upon the principle that the love of wife 
and children may deter him from the treason. The penalty is ad- 
dressed to the noble affections, which the law supposes will be in con- 
flict with the temptation. The legal and political judgment alone is 
applied to the offence; and the personal wrong can be pronounced 
only by the moral judgment, which can hardly ever pronounce it with 
safety, except in an abstract way, and which no father and mother 
should distress themselves by applying, or by supposing that any 
man of right mind will think of applying to an otherwise worthy 
man. He has died in what he believed was the performance of his 
duty. Our Saviour went further than all this, not to exculpate wrong, 
but to discountenance personal judgment even in a flagrant case. 

I have been much struck by the pointed and decisive answer the 
North is now giving to the pretence of the ambitious bad men of the 
South, who have poisoned their country with the belief that the North 
meant to uproot the institution of slavery, and therefore that it was 
impossible to avoid making war against us. The absence of any such 
Northern feeling generally, or even to a dangerous extent, is now the 
cause of our most dangerous and weakening divisions. Even in the 
midst of a war which is entirely defensive, and in the presence of immi- 
nent danger, it is the great impediment to the use of even military 
power to weaken the South by interfering in any way with their slaves. 

God knows I disapprove of the institution of slavery every way, 
— for its effect upon the slaves, still more for its effect upon the 
masters, most of all for its incompatibility, growing and incurable 
incompatibility, with such a government, black slavery pre-eminently. 
Happy Czar ! It would be a heavenly boon for us to exchange black 
for white, two for one, or one for two, just as he pleased. 

I do not wish to be quoted to the President, or any of the De- 
partments, or to anybody ; but while I am not and never have been 
an abolitionist, in the imputed sense, I have no idea of protecting the 
slaves of the South in such a war, or of letting them interfere with 
the full use of our military means, with them or against them, to 

360 



1862] THE CIVIL WAR 

subdue the enemy. Unless this result is reached and the slaves are 
made to be adstricti to their own States, I do not see how we are to live 
hereafter, either united or divided. 

(To J. C. Hamilton, Esq.) 

Philada., 8 Oct., 1862. 
Your kind solicitude for some of my descendants, who are and 
have been a small part of this war, is very interesting to me. It is not 
wise, however, to cultivate in such times as these that tenderness of 
heart which feeds the interest for those who are in daily peril. We 
must trust them to the Higher Power, whether we will or no. We can 
do nothing for them ourselves, unless it be to pray for them; and 
after that, the best course for ourselves is to take a step of a century 
or more in advance of the day, and look back upon our children and 
ourselves in the post futurum light. It will be better for them and 
for us that they fell in defence of their country, their country being 
so indisputably right, than to have lived to old age in what is called 
ease and comfort, and then to have gone into an oblivious grave, with 
the burden of ten thousand forgotten duties, which ease and comfort 
pass over unregarded. Everybody, perhaps, will say this for another, 
though so few say it for themselves ; but depend upon its truth, for 
it is the word of God, which both the Bible and all profane history 
teach. Sursum corda, therefore. I will not grieve over any one of 
my line who suffers or falls in performance of his duty. My regret 
is that there is not some way in which I can give anything more than 
the dead weight of old age to the cause, which, however, and upon 
what plans soever it may be conducted, is the noblest that can engage 
the heart of man. I have to use this language, for the plans which 
have been adopted in the application in our immense force and re- 
sources I have sometimes disapproved when I thought I understood 
them, and much more frequently I have not understood them when 
our rulers have explained them. I go for the support of the govern- 
ment, as per se my duty, until mere obstruction shall be obviously 
better than what government is proposing to do; and that condition 
is not likely to occur. I say this in special reference to the President's 

361 



HORACE BINNEY [JEt. 82 

Emancipation Proclamation, which is now the uppermost thing in the 
country. I do not understand the law of it. And do not believe that 
there is any law for it, unless it be the law of force in war ; and if it 
relies on that (which the Proclamation does not say, as I read it) it 
would, I think, have been much less disturbing to the country, and 
even more effectual, to have said it by way of conclusion than of 
premises. I shall be most agreeably disappointed if it does not in 
Pennsylvania bring up the Democrats into the position of a majority; 
and how much that may prejudice us no one can say. Nevertheless, I 
utter no word against the Proclamation, unless it is against it to say, 
as I do to some of my friends, that I regard it as an accommodation 
bill, which will pass only among friends, and may be withdrawn at 
maturity if funds are not provided. I still think the President is 
sincere and honest ; but does the confidence of even his friends increase 
in his general competency? O for that woman of Endor, to call up 
some, or at least one, of the dead ! And yet, better is it not to hear 
Samuel again, than to hear what Samuel said. . . . 

(To Sir J. T. Coleridge.) 

Philadelphia, 11 Nov., 1862. 

It is very kind in you, my dear sir, to give me another of your 
excellent and comforting letters, when I have not as yet acknowledged 
a previous one of the 13th August. It is no doubt because you keep 
no account of kindness to your friends, and especially to one who, 
from the condition of his country at this time, and for two years past, 
may be called a sufferer. I so understand it, and appreciate it, and 
am very grateful for it. . . . 

You say truly, my dear sir, that I feel the condition of things 
here the more for having so long witnessed, on the same spot, a state 
of general quiet and prosperity; and the change affects me with the 
more poignancy, because I have to give up my oldest grandson, and 
others of my family, to service in a most sanguinary and desolating 
war. I should, indeed, be entirely without consolation if I did not 
habitually look up to the great Being who has been so merciful to me 
all my life, and who I believe will overrule all the actions of men to 

362 



1862] THE CIVIL WAR 

the final triumph of virtue, and did not at the same time believe in 
my conscience, that this defensive war on the part of the North and 
West is perfectly just, was entirely inevitable, and cannot be termi- 
nated without submission by the South, or ruin to the country of 
which I am a citizen. It is this belief that sustains me, and sustains 
thousands of reflecting and good men by the side of me, all, never- 
theless, feeling the same anguish, that so many in Europe say they 
feel, at this terrible war. 

I know what they say in England and elsewhere, that the South 
cannot be made to submit, and therefore that we ought to make peace, 
that is, to agree to their secession and separation as they require, and 
to cease the shedding of blood. But I do not hold to this opinion that 
the South cannot be made to submit. It is far from being certain, 
or, I think, probable. But I hold with entire conviction to another 
opinion, that unless the South is made to submit, and whether the 
separation be voluntary or otherwise on our part, we are an undone 
nation, and shall have at our side a power that will rule us in peace 
or in war, to the ends of negro slavery ; and I call this being undone. 
I think you would all agree to it in Europe if you would forget the 
advantages of commercial intercourse with the South, and knew both 
that part of the country and the whole of it as well as we do. I do 
not mean to say that we shall certainly compel the South to submit. 
Their strength or passions may prevent it, or we may become divided 
in the North and West, as there is some ground to fear. I cannot 
answer for what the Democracy may do. They have brought in 
Texas ; they made the war against Mexico to acquire slave territory ; 
they united with the South, and would unite again if they could, 
under that false name, to get place and power at home in exchange 
for slave rule over the whole. I cannot answer for this, but I regard 
this as ruin for my posterity and nation, and therefore I make the 
choice of conscientiously contending, in this defensive war, against 
the slave power. My conscience, my dear sir, shall not undo me, 
although I may be undone by the South, in connection with my own 
blinded or corrupt fellow-citizens. 

But I am ashamed to have said so much to you, my dear sir, 

363 



HORACE BINNEY [Mt. 82 

and so much especially without giving my reasons. But this cannot 
be done in a letter. 

I don't mind what Mr. Gladstone said. Great parliamentarian 
as he is, he has got to like the fanning of the aura popularis upon his 
brow. I don't mind what politicians say anywhere. It is a calculating 
and rather venal body. I do from my heart admire and respect a 
great body of good men in England, who, I am sorry to say, appear 
to feel a sympathy with the South in this contest; and this grieves 
me deeply. I cannot understand it, nor am I able to distinguish it 
from a sympathy with the slave-trade. It is the slave-trade in the 
very worst form, and it is the predominancy of slave masters over 
freemen and freedom that are now in question, and have made this 
war. And they will continue it and renew it until they overcome all 
freedom in their neighbourhood or are overcome by it. Therefore I 
submit, and cheerfully, to whatever sacrifices this great defence of 
our freedom and virtue may call me to. 

I wish I had some news to tell you. I hardly open a newspaper, 
but they have everything, and more. General McClellan's recent re- 
moval from command of the Army of the Potomac makes much remark 
and some discontent. In nine days it may be less exciting. He is 
an accomplished officer, and has been successful in training the army, 
not enterprising in fighting it. There has been a party against him 
for long. Finally he has been relieved, as it is called. But his army 
is really at this time in the face of the rebel army, and this adds to 
the dissatisfaction from his removal. We require all our fortitude and 
all our energy and all our devotion. I do not, to answer one of your 
remarks, see at present much change in our people. Overweening 
enough, and vainglorious are some of us. We have no reason to 
believe, if this war is a dispensation for the punishment or cure of 
sin, that we have not many of our own to answer for. 

I beg my regards to your son. I have read his speech at Exeter, 
— a very pleasing photograph of him certainly. We do not, I think, 
mean the same thing at all, by democracy. So far from it, that I 
wish him success in his canvass, tho' since I have known Democracy in 
Pennsylvania I certainly have never wished political success to any 
member of it. 

364 



1862] THE CIVIL WAR 

{To Br. Lieber.) 

Philada., 4 Dec, 1862. 

I have received Mr. Livermore's Memoir, 6 and have read it 
with great pleasure. No person of my age required a document of 
this nature to assure him that the positions of Jefferson Davis in his 
first message, in regard to the change of opinion on the question of 
slavery at the North, and as to the sale of their slaves to the South, 
were false and covinous, as the old law-books say. I have travelled 
alongside of the muse of this history for more than sixty years, and 
all is written in my memory as Mr. Livermore records. He says little 
of Pennsylvania; but the Abolition Act of 1780 of that State pro- 
hibits expressly and punishes that thing which Davis charges upon 
them as the venality of their conversion from the love of slavery to 
the abolition of it. Nothing was ever more false than Davis's crimina- 
tion of the North in this respect. I speak, of course, of the 
ruling and predominant sentiment of what are now called the free 
States. . . . 

I should like to know what you think of the President's message. 
It is, I think, like his other messages, honest, sincere, and frank ; and 
some of its short logic is good enough, but he does not excel, I think, 
in long logic, and I remain quite at a loss to reconcile his proclama- 
tion with his projet of emancipation, except by supposing that the 
emancipation shall apply only to those slave States which shall be 
represented in Congress on the 1st Jany., and to whom the proclama- 
tion seems to promise that they shall keep their slaves in slavery as 
they now are ! I shall be glad, however, if he gets through the matter 
in any way, zigzag or otherwise. There is, I fear, no straight line 
of passage through it but force, if this people would consent to it. 

What I fear, and deeply, is that Democracy and Constitutional- 
Unionism will patch up a status ante helium that will skim over the 
ulcer, to break out at a future day, and to leave all the lost arms and 



8 On the Opinions of the Founders of the Republic upon negroes as slaves, 
as citizens, and as soldiers, a paper read before the Massachusetts Historical 
Society. 

365 



HORACE BINNEY \_Mt. 83 

legs and lives of the war without recompense, and almost without a 
grateful remembrance by the country. If party shall bring this 
about, it never did a more accursed thing. I had rather fight my 
remaining ways, and give my skin for a drum-head to keep up the 
fight afterwards, than agree to such a base and ignominious conclu- 
sion as this. And yet, is it not in preparation? 

If this Mexican war by Napoleon, in connection with his plan 
of mediation, — which two, it strikes me, are one, — shall unsettle that 
cordial entente of France and England, as perhaps there are some 
prospects, the scene may change in the course of the winter. At 
present the clouds are heavy, and my poor eyes almost give up the 
effort to see through them. 

Halleck's report is a very interesting one ; it seems to fore- 
shadow two charges against Mc[Clellan], — that he was determined 
to throw his failure at Richmond upon the administration, and to 
disappoint them of victory afterwards by delay, delay at the begin- 
ning and delay at the end. His neglecting altogether to inform his 
general-in-chief of what he was about, or not about, at Sharpsburg 
was next of kin to mutiny. 

(To the same.) 

Philada., 17 Jan., 1863. 

I hope, and I think, that the invention of certain Democrats, 
to exclude New England from a new Union, is a very weak one. The 
project I suppose to have been suggested by some men who belonged 
to the Breckenridge wing, and who are longing to get back to that 
condition in which the South took the ambitious lead under false 
colours, and left to the North the base spoils of office, where subordi- 
nate offices most abounded. But I do not believe that the mass of even 
the Democrats by name can be seduced in this way, and I am sure that 
the body and heart of the country are not to be seduced to Southern 
re-alliance in politics. The basis of such re-alliance must be slavery 
and connivance with slavery; and that I hold to be impossible to 
North and West. 

For many years I have given up a former opinion, that the 

366 



1863] THE CIVIL WAR 

New England men were bigotedly devoted to a tariff. I gave it up 
after full conversation with men of the best intelligence and most 
extended personal concern in manufactures, from whom I learned that 
as a body the cotton manufacturers were indifferent to it, some of 
them, m} r own friends, averse to it, or, rather, jealous of it. They 
feel themselves to be quite independent of it, self-reliant in both 
capital and skill. The passion for tariff is a Middle State rather 
than an Eastern devotion. It is the iron manufacture that is the seat 
or centre of the excitement in favour of tariff prohibitions or duties. 
The proprietors of this really precarious interest are those who stimu- 
late the mass and bring all the troops they can muster, — New England 
men for their cotton and machine factories, the Western and Middle 
men for their wool, and everybody for his own special concern, to 
unite whenever there is to be a fight. Yet with all their show they 
are indebted, for any success they obtain, to accident, and not to their 
own strength. The New England people know this as well as any 
people ; and they are a people who never give their hearts to anything 
they cannot perdurably make their own. Pennsylvania is more likely 
to run crazy after iron than New England to run after anything that 
cannot with great certainty be had for the running. And yet poor 
Pennsylvania, great as she is in population and wealth, can she ever 
be anything but a make- weight? . . . 

Perhaps I don't exactly agree with you in supposing that a 
pamphlet setting forth New England's excellencies is very necessary, 
or very expedient at the present moment. Not very expedient, because 
the jealousy of her and the purpose against her are not sufficiently 
declared; and it is not discreet to proclaim your defences while your 
enemy holds back the nature and object of his attack or accusation. 
It is not necessary, perhaps, at any time. St. Paul tells the Corin- 
thians, " Ye are our epistle written in our heart, known and read of all 
men." The New England men are their own pamphlet, read every- 
where in the land, in their everywhere present characteristics. Nothing 
can be said of them, good or bad, that is not universally known. They 
are everywhere, and have a hand in everything, and are the best hand 
in good things, and perhaps the best in some that are very bad, — best 

367 



HORACE BINNEY [JEt. 83 

in a bad way, — slave overseers, for instance ; but the best universally 
for practical administration to make the most of small things and 
to secure what is their own, though not the best to devise at first the 
greatest things. If New England shall not form a part of any nation 
that may exist on this continent, it will be because she does not want 
to, because she does not think it worth while, because she believes it 
won't pay. To exclude her against her will would be as impossible as 
to dam in the Amazon or Mississippi. I wish I were as sure that my 
own State will be in the place she wants to be as that all the States 
of New England will be. 

I will, however, give my voice for your writing the pamphlet, 
and I promise myself beforehand more pleasure from reading it than 
if it should come from any other pen. It would be more generally 
read, moreover, and be more generally assented to, than from any 
other quarter. I hope at the same time, if you do write it, you will 
not say, for you cannot think, that this opposition to the Southern 
defiance of all compromises, and Southern idolatry of State rights to 
annihilate the Union and to absorb the national authority, originated 
in New England or in either of its States. The crystallization may 
have first begun there, and perhaps in Massachusetts, because an old 
collision between that State and South Carolina made the Bay State 
less able to hold in solution the new matter which Southern imperious- 
ness had generated. The first deposit may have been there. But my 
clear impression is that the whole North, Middle and Western, were 
supersaturated before there was a deposit anywhere, and the super- 
saturation was in that part of the people that was freest from party 
leading, and freest from ignoble accommodation to false, unconstitu- 
tional, and immoral pretensions. 

I verily believe — I beg you, if you care to remember what I 
say, that you will remember my faith in this matter — that the real 
cause of this rebellion, the spring of it to the South, the spring of 
resistance to it at the North and West and everywhere, was in the 
Dred Scott decision ; that the author, fons et principium, of the out- 
break is Roger B. Taney, neither more nor less. It was he who first 
helped the South to the appearance and similitude of legal authority, 

368 



1863] THE CIVIL WAR 

in asserting that right to carry their slaves into every territory, what- 
ever the majority of all the nation, or its executive and judicial de- 
partments, might say ; and it was he who first told all the rest of the 
States that common sense and long-sanctioned interpretation of plain 
language were as nothing against the interests of slavery. The whole 
mass of the thinking people of the nation started at that ominous 
sound, New England not more than all other freemen who were in 
their senses. And from this has sprung all the rest, — we of the North 
and West to follow out in opposition every act from the South that 
proclaimed a determination to have a Constitution such as the Dred 
Scott decision had attempted to make our own. The Confederate 
Constitution is, in fact, only the Federal Constitution with the Dred 
Scott decision added to it by new specific clauses. 

Are we to shrink, or to fold ourselves in despondency, in a 
contest so beginning, because we do not succeed at once? Heaven 
forbid ! This success at once, the weak hope or wish of our people, 
perhaps of all people who have their say to such an extent, is our 
great danger. We have suffered immensely by it, and may — I must 
admit the possibility — we may fail by it, but let us see what will be 
the fate of an administration which proposes peace on the basis of the 
Dred Scott decision. I do not believe that such a peace would even 
skin over the last wounds of the war before it was broken. 

Did you see what a member of the House from the West said 
on the subject of the war? It was said with the air of great decision. 
" If you can secure Kentucky and Tennessee in this war, you will con- 
quer. If you cannot, separation is inevitable." 

But what a strolling actor I am, in rambling all these inco- 
herences in return for your sensible, though desponding, letter! 



24 369 



HORACE BINNEY [JEt. 83 



XIV 

THE CIVIL WAR PERIOD (Continued)— THIRD HABEAS 
CORPUS PAMPHLET 

1863-1865 

THE Union League of Philadelphia, which had been 
formed for the social intercourse of loyal men, and 
to exert a collective influence in support of the 
Union, had planned to emphasize its work by a grand ban- 
quet on the Fourth of July of this year. Almost at the last 
moment the project had to be abandoned, as the menacing 
advance of Lee's army summoned the members of the 
League to more serious tasks than feasting. A few days 
before this, however, on June 25, Mr. Binney, when writing 
to state that his age and failing strength compelled his de- 
clining the League's invitation, took occasion to express his 
cordial sympathy with its work. The League was at that 
time a thoroughly non-partisan body, where loyal Democrats 
and Republicans were equally at home, and this obliteration 
of party lines was to his mind the most healthy and hopeful 
feature in the League's constitution. Possibly he looked 
forward to a time when the League might be tempted to 
give up its non-partisan character, and thought it well to 
sound a note of warning, as well as of encouragement. At 
all events he made non-partisanship the central thought of 
his letter. Pointing out first that devotion to the Union and 
support of the government ordained by the Constitution 

370 



1863] PARTY SPIRIT 

were the spirit of Washington's Farewell Address, he went 
on to say, — 

If there be any practical distinction between the government 
and the administration, party has made it, and not Washington ; and 
it is a distinction disloyal to the Union, the Constitution, and the 
government. It reduces loyalty to the degraded rank of personal 
favour to personal actors in the government, and to party satisfaction 
with party measures of government. The doctrines of Washington 
were not party doctrines. Washington belonged to no party, wrote 
for no party, and acted for no party. He feared the evils of party 
more than all other evils which could assail the Union. He has de- 
scribed, and almost denounced, the designs of a party disloyal to the 
Union, which he thought was in sight in his own day. This was the 
parent thought of his Farewell Address. He discommended parties 
altogether, and at all times, as intrinsically dangerous to the Union 
and to republican government. 

Let us be thankful that God spared the eyes of this pure and 
incorruptible patriot from beholding, and perhaps his spirit from 
conceiving, the terrible depth to which this nation would fall when 
an immense and ruling mass of its people would regard party as a 
political virtue, and the passionate exaggerations of party as the 
only efficient instrument of government. He was especially blessed in 
escaping the sight of flagrant and wide-spreading rebellion, raised up 
by and through the spirit of party, to blast the best fruits of the 
great labour of his life, to destroy the Union, to falsify the Declara- 
tion of Independence, and to lay foundations in government which 
all our fathers abhorred. That sight has been reserved for us, per- 
haps for our unfilial disregard of his advice, which seems to have been 
an inspiration of Heaven. 

The letter was published as one of the League's series 
of war pamphlets, but whether its sentiments would have 
been equally well received in more recent years is perhaps 
open to question. 

371 



HORACE BINNEY [Mt. 83 

{To Dr. Lieber.) 

Philada., 7 July, 1863. 

I wish that circumstances had permitted the Union League 
celebration on the 4th ; but the moment that Lee's advance f oreshewed 
his coming, everybody saw that we must think of something else. 
Every one saw that it was better to throw away the expense incurred 
than be chargeable with boasting and affectation abroad, and be said 
to check the outflow from other quarters. Your theme would have 
developed very attractively to hearers of all descriptions, for you 
have the art, with the heart. 

The rout and retreat of Lee are certain, and we shall, I hope, 
hear more. But I do not expect all or half of what the press predicts. 
I hope it settles the question of Northern invasion. They have no 
such resources of men or supplies at the South as will enable them to 
come again so far from their base. We have a strong and fresh army 
from Pennsylvania, eighteen to twenty thousand, pressing on the rebel 
rear — I wish it may be the rebel rout. Our particulars of killed and 
wounded are now to come in, and will darkly overhang us for a long 
time. We do not yet hear of our grandson, and the non-intelligence 
is thought to be favourable. . . . How crushing is the weight of 
hours of suspended intelligence after a battle of two days ! It seems 
to me that there has been no fighting more desperate and deadly than 
ours ; and so I predicted it would be. ... 

My dear Lieber, I have had nothing to do, in all the agitation 
of the past fortnight, but to hold on. That is the best thing that 
any man can do in such a hurricane, even if he has nothing better to 
hold by than himself. I made a few simple arrangements, very quietly, 
to place my wife in safety with her friends on a day's notice, and I 
had nothing further to do but watch and pray, which had no tendency 
to disturb me in the use of my faculties for anything that turned up. 
I felt deeply for many, and had many to think for, and to assist in 
doing or preparing for themselves what I had done for my wife, but 
since this there has been no agitation, nor any wasting of our strength 
by anxiety, or by much inquiry to learn whether we need be anxious. 
I am gratified by your solicitude for me and mine. I should count 
upon it in all similar conditions. 

372 



1863] THE CIVIL WAR 

(To the same.) 

Philada., 11 July, 1863. 

It is true, I believe, that my last letter was mailed before the 
news from Vicksburg was received; but if the hurrah, and the bell 
of the State House, and the insurrection of flags had proclaimed it 
before, I should hardly have stated more than the fact. I never crow. 
I never did crow. I can't crow, not even inwardly. I look upon it as 
a defect. I am sorry for it, but I can't help it. I sometimes am near 
to it, I suppose, when I have hit upon what I think is a logical demon- 
stration, and the next thing I expect that my wings will collapse, and 
my tail drop, upon finding that it is no demonstration at all. So 
with Vicksburg; so with Gettysburg; so with any burg; something 
yet remains, and will remain, to keep me from crowing; and when 
all the cocks in creation shall have cracked their throats, mine will be 
as good, and as good for nothing, as it was before. If you will only 
tell me how this nation, government, people, will come to settle down 
in anything that will have a fair chance of lasting respectably for 
fifty years, then, if there is any crow in me, you shall have the whole 
of it, with a will. But there is so much misery in every victory that 
we have had, and that we can have, in this civil war, — the incarnation 
of evil spirits, — that while I say to my Union friends, " Go on, spare 
not ; when one falls let two take his place ; there can be no good end 
to it but victory or death," yet I regard all this as mere conformity 
to duty, being utterly unable to see that even complete victory will 
bring us anything that will be worth having. If I had not a firm 
trust in God, I know not what I should be or do. 

We hear nothing of my oldest grandson, who is aide to Neale 
of the Sixth Corps, but hearing nothing is good negative evidence of 
his safety. My second grandson is with his battery at Carlisle. My 
third left with his regiment (Second Union League) last night at 
twelve. And to all this I don't say nay, but cheer them on, and tell 
them, as I really feel, that to them these days of duty, however sharp, 
and howsoever ending, if they be ended in that service, will be worth 
a thousand days of ease and pleasure at home. 

Meade has been doing admirably. I have known him long, 

373 



HORACE BINNEY [JEt. 83 

though slightly, as old seniors know young juniors. He has always 
had a pure character, and has been in the Engineer Corps since he 
left West Point. I knew his father well, and his mother well, and his 
grandfather, an Irish merchant in this city from before the Revolu- 
tion. Mother and father were natives of Philadelphia, both of them 
of high spirit: the father a gentleman, the mother a lady and very 
beautiful. General Meade married the oldest daughter of John Ser- 
geant. I was at the wedding, and handed Mrs. Meade, certainly even 
then the most beautiful person in the wedding-party, to the supper- 
table. All this makes the general come near to me, though I have 
for twenty years seen and heard little of him. From hearing so little, 
I did not expect all that he has performed; but I hear that all the 
commanders of corps but one (which, I don't know) preferred him to 
Hooker. I wish him unbounded success. . . . 

Do you hear from your sons? Let me know. 



(To Sir J. T. Coleridge.) 

Philadelphia, 10 Nov., 1863. 

I find by a memorandum on your last letter of 23 Oct., 1862, 
that the date of my last was the 11th November. Of course I am 
just in time to make a continued claim to the kindness which your 
letters have always manifested, and which the lapse of another day 
might have barred. My title was at all times so imperfect that nothing 
but actual enj oyment gave me anything to stand upon ; and I am 
very desirous of not risking that by omitting to interpose a claim. 

But I have very little to say further. . . . You know what I 
thought as to the prime necessity that was upon us, to resist the South 
by arms to the end. I thought there was nothing else left to us, in 
point of honour, or in point of national existence. I think so still. 
This nation, as it has been made, and as it exists geographically, and 
in the relation of its great divisions, does not admit of division in any 
way to quiet this contest. There are large portions of the slave- 
holding South that are of this opinion. We must perish, that is to 
say, break into several insignificant, discontented, and angry parts, 
or we must come together again as one nation, even if it be only to 

374 



1863] THE CIVIL WAR 

divide in a better way. A division between free States and slave 
States can only be the root of renewed war after an insincere peace, 
or rather a war-preparing truce. I hold to this opinion after as great 
an effort as any man could make to form a right opinion. And it is 
some confirmation of it, that up to this day no man, North or South, 
has, in point of fact, suggested any adjustment that had the sem- 
blance of real peace, or probable durability. This is no doubt the 
sharpest feature in the case. It is easy to suggest palliatives of our 
coexistence if we come together again; but no one has hitherto been 
able to shew how either section can live in sincere peace upon the only 
division the South has ever claimed or suggested. 

I have no doubt that we cannot go on with this war on its 
present scale forever. But the wisest statesmen do not insist upon 
looking so far ahead. England could not have gone on forever against 
Napoleon or the policy of Napoleon. But she did not come to the 
day when either expense or suffering deterred her from continuing 
her resistance while that man and his policy opposed her. Neither, 
do I think, can we refrain from continuing, indefinitely, our opposi- 
tion to the only policy the South has ever proclaimed, — just as dan- 
gerous — indeed, this is an inadequate expression — as the policy and 
arms of Napoleon were to England. 

There you see, my dear sir, that although I confess that I am 
full of regret, even to sorrow, for the state of things here, even weak- 
ened and enfeebled in health and spirits more than by the decay of 
years, at the frequent occurrence of battles and bloodshed and devasta- 
tion, yet I regard the North, as it is called, as still contending for 
her honour, and peace, and life, and I sustain the general action of 
this government in opposition to the continuing defiance of the South. 

Parties do not die, because the country might do better without 
them. The party opposing the government was at one time very 
menacing; and if it meant what it threatened, would have not only 
put us at the feet of the South in the great question of division, but 
would have carried over Pennsylvania and other States depending on 
free labour. That danger has disappeared for the moment, tho' it 
may come again. There is no avoiding the action of a party in time 

375 






HORACE BINNEY [^t. 83 

of war, whether civil or foreign, because it has been formed with 
reference to peace and peace policies only. The union or association 
of men for any great purpose is too useful to its leaders to be dis- 
solved under any circumstances, if they can help it. And it will be 
maintained, and is maintained even in this civil war, on the very border 
of treason, and sometimes crossing it. We cannot help this, but we 
may strive to disappoint the purpose. 

I was much struck last evening, upon taking up Cicero's Let- 
ters in Melmoth's translation (excuse me), to find the same condition 
of things in the civil war of Rome. He tells Plancus, " Let me conjure 
you, therefore, to separate yourself from those associates with whom 
you have been hitherto united, not by choice, indeed, but by the general 
attraction of a prevailing party." There it is exactly, — union against 
the authority of government, " by the general attraction of a prevail- 
ing party." But the Democratic party has an immense fissure in it, 
and this is the present strength of the government. As it is a demo- 
cratic party, I pray that the parts may never be reunited, but this 
prayer is without faith, and is therefore never mixed with those which 
I address to my Creator and Saviour. I have a horror of democracy as 
the radical principle of a government, as I dare say I may have said to 
you, for I have no concealments ; while I am as firm a friend of free 
government as any man that lives. If this party shall regain its old 
force, as probably it will, the government, should it defeat this re- 
bellion, will probably be the old thing, — not the best thing certainly, 
but infinitely better than anything we can have if the rebellion shall 
triumph. . . . 

Old Lord Lyndhurst seems to have departed in the odour of 
some kind of sanctity. Age I suppose had embalmed him in some way, 
at least in the estimate of the leaders of some of your journals. When 
I was in England I did not often hear him spoken of with as much 
respect as his talents would have deserved had there not been some 
considerable drawback; but what it was I did not learn. He might 
have suffered in the opinion of Whigs, from his ardent and efficient 
course as a Tory; and if this was all, it was well forgotten when he 
manifested such unusual powers in his very old age for general politi- 

376 



1863] THE CIVIL WAR 

cal instruction. I saw him in Boston in 1795, when he was travelling 
as a Fellow of Cambridge, I believe. It seems to me to have been but 
a year since. 

Your health, my dear sir, I learned from the letter I referred 
to as being better, and that of Lady Coleridge also. I was much 
gratified by it. I shall always be happy to hear of the welfare of 
your family. My own is as it was a year ago, only a year older, that 
is to say, minus a year of life; in other respects unchanged, which 
cannot be said of the mass of my countrymen, nor of a great many 
in these times and parts. 

(To Dr. Lieber.) 

Philada., 1 Dec, 1863. 

On this first of the month, at half-past five in the morning, 
under my bright kerosene lamp, I respond to all you say about the 
Amicitia, the rarest and best of the human ingredients of the unit as 
fratum. But there is too little of it, in the Ciceronian sense, to make 
it a matter of much delight or even of speculation with my country- 
men. They are too universally a people of business ; and business is 
the rotation of self upon its axis, rarely or never running truly in 
the wheels of other people. I rather think that I was formed for the 
right kind, and I had a long experience of it with my friend Chauncey. 
Some also I had with one other, and it was no fault of my wheels that 
it was not uninterrupted. It is a great blessing to the possessors, 
wherever it is of the right sort, — not for the strength it imparts to 
each, by no means, but for the peace it brings in a wider relation 
than a man has to himself. When I speak of strength, however, I 
mean strength in the world, strength to overcome opposers. The 
true moral strength to revolve regularly upon your own pivot of duty 
to all around you, that it does give and support to an immense degree, 
and it is this which makes the friendship of two or more virtuous men, 
the blessing of many, and the assurance of all. 

I am glad we have been drawn nearer to each other in late 
years, and sorry that it did not begin when we first knew each other. 
I think we seem to agree in sentiments, preferences, aversions, sympa- 

377 






HORACE BINNEY [Mt. 84 

thies, of the intellectual and moral kind, better than most. But we 
neither of us know what might happen if we lived next door; and 
therefore I moderate all my regrets, which are many, at your living a 
hundred miles away, by this reflection. We are not likely to fall out 
in the post-chaise ; and if our correspondence brings me any regret, it 
is the ungrateful one that I am too old to permit it to last long. May 
it last and bear good fruit while we live. . . . 

(To the same.) 

Philada., 23 Feb., 1864. 

... I am quite glad that Mrs. K 's good fortune has made 

her husband independent. My memory goes back to a time when, 
from her good father's position, it might have been looked for at an 
earlier day; but better late than never, and much better than early 
and not late. My retrospect of the duration of property endowments 
in this State, and I suppose most States are alike, has shaken me from 
any such anchorage. I pray for daily bread both for my children 
and myself, but I go no farther ; and nobody who does knows what he 
is praying for. If Pilate had asked me what is truth, I could have 
answered in those words, that no man who prays for greater pro- 
vision than daily bread knows what he is praying for. He who prays 
for that and nothing beyond, knows that he is praying for that, and 
also for the state of mind, which is the greatest part of it. Get that 
and keep that, and the fall of greenbacks will not make our skies fall, 
nor shall we catch larks, but much better birds. 

(To J. C. Hamilton, Esq.) 

Philada., 14 Mar., 1864. 
Your interesting letter of the 11th has been walking about in 
my head day and night, until, coming from church yesterday after- 
noon, I was informed by a friend that France was coming with inter- 
vention, something more than recognition, and that we were to be put 
much more upon our pluck and resources than we had hoped. So, 
Russian engouement, Treasury and State intrigues, the Greek Church, 
and grapes in Moscow at fifteen cents a pound from the Caspian have 

378 



1864] THE CIVIL WAR 

received a temporary sedative in my brain, and I must turn to ask 
you what you know about this, as you are the focus of all the escaping 
rays of information from the departments at Washington. If Chase, 
like Seward, cares nothing about true fame, but only wants to get 
on the top of the pillar, like Simeon Stylites, to be looked at with 
upturned eyes by the people, and to be fanned with the aura popularis 
from all quarters of the heavens, as Webster did, and Clay did, and 
all have done for fifty years past who think themselves topmost, why 
then, in my notion, this republican government is made only to fool 
and ruin clever men, without ever deriving any solid benefit from them. 
I really can find but one man in the history of our country who wished 
to make his fame out of what he had done for his country in the way 
of solidity and security. I, of course, don't mean Washington ; for 
though his heart and soul were devoted to doing what he thought 
best for the time and at the time, yet he had passed the age of con- 
struction when he first came upon the great stage, and his mind, more- 
over, was not of a constructive and forecasting order. I refer to your 
father, who has, and will, I fear, continue to have and to hold the 
niche of a true state-builder, alone and unapproachable, and made an 
undying name by laying the broad and deep foundations of public 
security and solidity. He did not care to invent a tottling, crazy, 
pillar, nor was he for making a vacuum all round him, that the public 
current might draw towards him ; but he meant to build a great solid 
temple, that would protect and cover and accommodate everybody, 
his ambition being to have his name inscribed on that, and in its great 
chambers, as his enduring reward. These aspirations for the Presi- 
dent's office are to me a wonder and an astonishment, and I sometimes 
think that the most decisive argument against a republic is that it 
fools and dwarfs the best minds in the country, by directing their 
hearts towards the vain, ephemeral show of the first office in it, to be 
obtained by popular arts and intrigues; and the saving feature of a 
monarchy is its permanent, though personally insignificant, head, 
which compels men of great minds from thinking of the pinnacle, 
and drives them to work for their own fame in the elevation and con- 
solidation of their country. . . . 

379 



HORACE BINNEY \_Mt.S4> 

In July Mr. Hamilton brought out his edition of " The 
Federalist," together with his father's earlier essays, known 
as " The Continentalist," and Mr. Binney published a brief 
but careful review of the book. 



(To J. C. Hamilton, Esq.) 

Philada., 4 Oct., 1864. 

I thank you for your letter of the 3d, and most especially for 
your pamphlet. 1 In regard to one part of your letter, please omit 
printing or publishing anything in regard to my grandson. Neither 
he nor any of his family belongs to the vaunting, puffing, blatant 
self-praisers, with which our world is already wearied and sickened. 
I noticed his participation in the fight at Opequan, only as a sort of 
classical feat of the young soldier, to beget a declaration of sympathy 
for me, which is so pleasant to an old man. 

As to the pamphlet, it is as full of sense and spirit as an egg is 
of meat. When I see the vicious doctrines of Jefferson reproduced 
as they are in State rights, and in all the spawn of rebellion, I feel 
that evil is not to die by the arms of man. I cry out, " Sedet, et in 
ceternum sedebit." But the destruction will come from an eternal 
vindicator, when it shall seem meet to him. In the mean time the duty 
of all men is to oppose it in every form, and never to cease opposing 
it whenever and wherever it shows its face. I need not say that I 
agree with all you say, doctrinally as to the Constitution, historically 
as to the opinions of Washington and Hamilton, and politically as it 
regards the Chicago convention and platform and the candidates 
under it. I only say, to include a conclusion, that I am not, and never 
can be under any definition that I can adopt, a democrat. That the 
people are the final cause and the Constitutional origin of all power 
among us is true. I acknowledge no other, for either a republic or a 
monarchy; and having reference to this only, the government of 
Napoleon III. is as democratic, and the empire as much a democracy, 



Coercion Completed, or Treason Triumphant," New York, 1864. 
380 



1864] DEMOCRACY 

as our own. But the moral source of all power, which is also the 
source of the people, has respect to the ends and purposes of power, 
and for the highest of these ends and purposes, the sure establishment 
of freedom as well as its diffusion, the people as people are not the 
true source of it, but God above, and the moral qualities with which 
His grace imbues some and not all men. Virtue, reason, love for man- 
kind, which come from the eternal source of all power, have better 
right to exercise it than man simply. They are to be regarded as the 
qualifying elements of man for the exercise of power over himself as 
well as over others ; and therefore with me the mere Demos is as little 
of an idol as the sheep or the sheaf he feeds upon. His moral qualities 
are his true title; and therefore, while I admit him to be the final 
cause of political power with us, I do not admit him to be the efficient 
cause of power in government. Hence I require siftings, distinctions, 
and qualifications, in all preparations for the exercise of political 
power. I am a republican, not a square-toed, crop-haired sumptuarist 
(I coin the word), iron-hearted fellow, like Cato the Censor, nor even 
like Brutus, the much better and kindlier man, though he killed Caesar, 
nor even like Cato of Utica, who was an aristocrat like Brutus, and 
withal an oligarch ; but I would fain fill this definition generally, with 
the properties of a large heart, full of love for the whole public good, 
which is the good of every man, and so limiting the power of the 
people as to make it turn in some degree upon the evidences of their 
moral qualifications. I do not assert that this is very practicable, and 
I do admit that any rigour or excess in the application of it is very 
dangerous politically ; but this is my ideal, and if ever I took a name, 
it should be that, and not the name of democrat. Our Constitution 
is not democratical, but the reverse ; but whether it should be demo- 
cratical or republican, I think, is left too much to the States, and so 
did your father. He saw, and I think I see, that there may be more 
republicanism in a monarchy than there is sometimes in a democracy, 
which may be only another name for demagogracy, the worst govern- 
ment and policy upon earth, growing by what it feeds on till it breaks 
down its support. 

3S1 



HORACE BINNEY [JEt. 84-85 

(To Dr. Lieber.) 

Philada., 18 Nov., 1864. 
For a few weeks I have not been quite as well as usual, the prin- 
cipal trouble being in the eyes; but the election has been euphrasy 
to them, and I hope soon to have a full use of them. What a glory 
it has been ; and yet what an infinite disgrace, what an ablation of all 
honour, the loss of it would have been ! I am almost unwilling to 
allow credit for the success, so shameful would have been the defeat. 
And yet it is a great honour to a people to be so extensively possessed 
of a virtuous sentiment, and to carry it so firmly and loftily in the 
midst of suffering and sacrifice. It has made me feel, more than I 
ever expected to do, that we are a nation, a country, and that, God 
helping us, we will remain so against the world, the flesh, and the 
devil. This, and none other, is, I think, the voice of the election, what 
it says, as it were, to Heaven, what it says to the people of Europe, 
and to all points of the compass. And well for us is it that the voice 
has said it, for what should we become otherwise? My apprehension 
has been that if we should fail on this trial, we should be worse off 
than any other people in the world in a like case of dissolution. We 
have so false a principle of combination in us, such a preference for 
private partnerships in government, such a repulsion from everybody 
out of our own plot or survey, — I say this of our opponents and not 
of ourselves, — that we should have torn each other to pieces in the 
convulsion — States and men pulling and haling every way — and our 
race would have been given over as incurably centrifugal and inca- 
pable of alligation. As I go out of the world, it will be a comfort 
to think that this is not now so likely to be our fate as I once 
thought. . . . 

(To the same.) 

Philada., 3 Jany., 1865. 

... As to the universal suffrage of free blacks, my judgment 

is suspended. I have no repugnance to it. Fifty years ago, as a 

judge of election, I ruled that a free black native of Pennsylvania, 

who had paid his tax, was entitled to vote ; and there was no dissent. 

382 



1864-65] NEGRO SUFFRAGE 

Our Democrats, to accommodate the South, changed our Constitu- 
tion in 1838 (amended it, they said) by confining the elections to white 
freemen. But I have always questioned, and almost repudiated, the 
quietism of the Federal Constitution in turning over to the States 
the qualification for representatives in Congress. The United States 
should have prescribed it for themselves, as a definite qualification, of 
freehold, tax, etc. Representatives and direct taxes have no proper 
interrelation, nor ought they to have, to mere numbers. Numbers 
should signify more than heads of human beings. They ought to be 
numbers of political beings ; for if they are not these, they might 
as well be oxen or asses as human beings. If they are able to elect 
and be elected as representatives in the State Legislature, that per- 
haps might suffice for Congress. But is it practicable? At present 
I doubt it; and at present, and until full opportunity for observa- 
tion, say until 1900 a.d., I had rather confine the apportionment of 
Representatives to white free men, leaving the question of compre- 
hending others to a future day, not too remote. 

But it is only one of the thousand and one difficulties of the day. 
I don't believe that Wendell Phillips is sane ; for no man can be sane 
who is for doing everything he approves at once and not by degrees. 
Almighty power and infinite wisdom do not work in this way. God 
made the world in six days and not in one; that is, He made it by 
degrees. What an absurdity is it to say, You must do it in the end, 
and therefore you may as well do it now ! The best reason for not 
doing it now is that you do not know enough or that things are not 
at present fitted for it, as they may be in the end. At present, if the 
South gave the qualification of electors to the free blacks, the blacks 
would be too feeble to use it properly. They would be the tools of 
faction, and work mischief, and against our peace rather than for it. 

You are right in saying that I do not care to read the journals, 
nor to write about them. Do you call this history as it passes? Then 
it is made of shockingly bad materials. Nine-tenths is a lie, which is 
within a tenth of what Sir Robert Walpole thought of all history, and 
I do not. I care less about history as it passes than I do after it is 
caught, and can be held in the hands, and turned on all sides. But 

383 



HORACE BINNEY [^Et. 85 

I like to chatter to you with the pen and to read what you write. Mrs. 
L. is right. Don't let this communion die, except a natural death, 
which can't be far off. I shall be eighty-five if I live seven hours, and 
whether I do or not, affectionately yours, 

Hob,: Binney. 

( To J. C. Hamilton, Esq. ) 

Philada., Jan. 10, 1865. 

I thank you for your excellent letter. I like all its suggestions. 
I am getting on well, as well as possible, with such weather, which 
makes me miss my indispensable oxygenation. We want a man in 
Congress. O for such a man as I wot of ! But he is among the stars. 
God bless him and his memory forever. No occultation will ever hide 
him from those who have once seen him. Haven't I read the report 
on public credit? Don't I know it, revere it, and revere its author for 
his sublime political virtue? 

I think they care little about it at Washington, the whole being 
absorbed in the work of loaning, which they believe they help by the 
worthlessness of the thing loaned. Perhaps they do; but the time 
will come when this must come down, and where will then be the credit 
to build up again? The worst thing I know against Mr. Chase is his 
consenting to that audacious special income duty upon the income of 
an expired year, which had already paid the income tax assessed or 
charged upon it while it was in hand ; and if this special income duty 
applies to the interest on the public debt, as they say it does, then in 
my judgment it is a plain and gross breach of public faith. However, 
it is all to be disregarded under the new law of 1863. Certainly there 
can be no return of spirits to the earth they have left, or your father's 
would revisit and frighten them in the Capitol ! . . . 

(To Sir J. T. Coleridge.) 

Philadelphia, 11 March, 1865. 
I had no right to the great pleasure I have received from your 
late letter of 23 Feb. from Torquay, when I was already your debtor 
for the preceding one of Nov. 19 from your own home. You are 

384 






1865] TREATMENT OF PRISONERS 

quite right in one of your suggestions as to the reason of your not 
having heard from me, and as wrong as possible in regard to the 
other. A day or two after the receipt of that letter of 19 Nov. I took 
rather a long walk on a very cold day, the first of the very cold 
weather that was to follow, and in the afternoon found myself lamed 
by the effort. It proved to my family physician the next morning 
to be an inflammation of the lymphatics or absorbents, as they are 
called, of my left leg near the ankle, and extending above the knee; 
and altho' it yielded pretty readily to a cold dressing of lime-water, 
the fever which first attended it, and the warm room night and day 
to which I was sentenced, and to which I was wholly unaccustomed, 
completely unfitted me for the severe winter that was then begun, and 
lasted to the end of February. I have never felt so tender, old, and 
good for nothing. What time I could write, I had to give in another 
direction, and so my acknowledgement of that letter was deferred. 

As to your other suggestion that this might have been owing to 
something you had said to my son on the subject of the publication by 
the Sanitary Commission, it was further from the fact than the pole 
from the equator, as far from us as the antipodes. Fie ! Fie ! Never 
think of such a thing. I did not concur with you, and I will presently 
tell you why ; but that my non-concurrence with anything you write 
to me or to him could have the effect of estranging or silencing me — 
ny dear Judge Coleridge, there is no man on earth, whose hand I 
have never shaken, that I love and respect half as much as yourself. 
k. difference of opinion between us would make me think myself wrong 
n regard to nearly every matter of opinion; that in regard to any 
aoint it could make me think you were unkind, or wanting in consid- 
eration for me or my family, is utterly impossible. 

I did not concur with you on the point of publication. On the 
:ontrary, I advised it before it was determined upon. The exchange 
)f prisoners was broken off by the black question. Our men were 
starving in the hands of the rebels wherever they were in prison. I 
relieved this to be a government, and not an army, decree; and I 
;hought too well of many persons in the South to doubt that if they 
mew what we did on this head, they would act upon their government 

25 385 



HORACE BINNEY [Mt. 85 

and bring back exchanges upon the only principle on which we could 
admit them. And the result justifies me. 

As to the question of starving and barbarous usage, do not enter- 
tain a doubt that the facts in that publication are irrefragably true. 
They are so indubitable that we should have had a horrid scene, if 
what some persons wished had been assented to by a majority of the 
two houses. When I was asked what I thought of retaliation in kind, 
I answered, it is out of the question; your people will not submit to 
it; they will break down your prison walls by their cries and execra- 
tions, and feed and clothe the prisoners themselves if you attempt to 
starve them, or to turn them out into the winter and cold without fire 
or shelter. Nothing of that. Let their own people know what has 
been going on among them. If that does not bring a remed} r , let the 
government make a formal protest to every nation upon earth, with 
which we have friendly relations, against this departure from the 
modern law of war, and leave the rest to Heaven. " Vengeance is 
mine !" Such was my advice, and I still think it was right. 

There is something, my dear sir, which prevents excellent men 
in England from concurring with excellent men in the United States 
upon hardly any point in our present controversy with the South, 
altho' entirely congenial upon almost every other topic. I will not 
say what I think it is. I think I see it in Englishmen for whom I 
have great respect, admiration, and even affection. Of course, I do 
not think they see it themselves. It is perhaps in the atmospheres 
that both of us are breathing, and either may be as prejudicially 
affected by it as the other. I think it teaches the lesson to such an 
old man as myself not to enter upon any such matter with one I so 
much love and regard as yourself. . . . 

We have Canada on the North, and Mexico on the South, and 
our Civil War in the midst: sufficient, certainly, for the day. But 
nothing will come of Canada, now or at any time, except talk among 
uninformed politicians. I should be surprised at Lord Derby if he 
were not speaking for persons who want to get into power. 

Mexico imports us more. I have no doubt monarchy is better 
for the Mexicans than a republic; tho' it is hard to say what is best 

386 



1865] THE CIVIL WAR 

for a people who have had no government for fifty years, nor before 
that anything but priestcraft. If Napoleon's hand were not in it, it 
might give us less trouble, but we have even more suspicion of him 
than fear. We have more fear of England than suspicion. We think 
we know all that she means. She means, and has from the beginning 
meant, to make profit out of the law of nations, as, in our case, she 
says it permits her. If we were as free-handed as she is, we would 
not permit it for a day ; nor would she if our state should become 
hers. 

Pray write again and tell me something about the Judicial Com- 
mittee, and what it is intended to do with the law of it. 

(To Dr. Lieber.) 

Philada., 7 April, 1865. 
I am of course highly gratified by success against Richmond 
and Lee's army, and shall be gratified by more of the same kind. But 
it is not old age, I think, but something congenital which keeps down 
in me sudden ebullitions of joy or grief. I have a special reason to 
explain the absence of any jubilant outburst at present. I do not 
think the end is yet; and I think I perceive that mere prolongation 
of time and expense is to be very costly to us. The people of the 
rebel States are, I apprehend, to restore the Union, if it is to be re- 
stored. Our armies no doubt must give them the impulse, but the 
rebels must receive it and carry it on to the proper end. My convic- 
tions, determinations, fixed purposes, have all been on defensive suc- 
cess ; for I counted no cost, no loss, as anything in comparison with 
sufferings and losses in body, soul, and mind, by the triumph of South- 
ern arrogance, insolence, and slaveocracy. I have always been willing 
to go to the last end in offensive defence against such a consumma- 
tion, even to the very last end, the jumping-off place. But after that 
defence was achieved I have never been able to see much beyond ; and 
I do not think the clouds in the horizon will be lifted up to me, except 
by the Southern people themselves. I am not at all without hope; 
but with every success on our part there mingles just enough of the 
uncertain future to hold my feet to the earth, and to keep me from 

387 



HORACE BINNEY [Mt. 85 

great altitudes of joy. I do not, however, wish to repress others; 
and I admit that the nervous secretions are much and healthily pro- 
moted by elevated joy and triumph in a great and good cause, as ours 
is. I thought Napoleon's preface a piece of consummate affectation, 
rather than commonplace. I could not extract anything that was 
either new or good from its sententiousness ; but thought I perceived 
that he was on the stage, and meant to walk in the buskin of philo- 
sophical history. I hardly expect he will tell us more of Julius Caesar 
than we know already, or tell it in a better way. But this is your 
province, and somebody will live to see you fill it, as you can. 

What that is which you are expecting to send me I do not con- 
jecture; but any one who is writing what he wishes me to read must 
make haste, as I said to a gentleman who is preparing an extended 
memoir of Professor Silliman. The winter has been one of bodily 
discontent, and I perceive, as well I may, that the foot of time may 
be inaudible and noiseless, and yet leave its very discernible marks 
after he has passed on. Still the freshness of my heart is, I think, 
undiminished; and I feel as near to what is called faith as possible, 
that this will remain to its last beat. I may suffer the more for it. 
This must be as God pleases ; but all my happiness here must come 
from this, and it is some ground for the hereafter. 

I have not been idle myself this past winter; but you will hear 
more of it when I shall be ready to speak. 

The last sentence of the above letter refers to Mr. Bin- 
ney's third Habeas Corpus pamphlet. In July, 1864, Mr. 
Hamilton had suggested to him that there might be some- 
thing more to say about suspension, and he had replied as 
follows : 

As to the Habeas Corpus, I will continue to think about it, as I 
have done. One of my difficulties is that Congress have bed — d the 
subject by their Act, having first, in new and unusual language for an 
Act of Congress, asserted or declared the President's right in the 
strongest and most explicit terms, and then proceeded to regulate 
partially his proceedings, as if the power was their own. If I could 

388 



1865] HABEAS CORPUS 

make an argument to justify this, I should already have tried it, and 
introduced the English practice before the third Parliament of Charles 
I., which I may suppose some of the Convention had in their eye. 
But I have an unspeakable aversion to get again into an argument 
of any gravity, which grievously disturbs my health. I will, however, 
think about it ; and if I live to the cool weather of the autumn, I may 
go at it. 

The result was that by March, 1865, he had completed 
an essay on the nature and extent of the power of suspension 
of the privilege of the writ, considered generally, in the light 
of the records and authorities in regard to such suspension 
in England. The investigations which gave rise to his 
pamphlet in no way weakened his previous view of the Presi- 
dent's power under the Constitution, but rather convinced 
him that the proper limitations of the power, in the interest 
of liberty, could only be maintained by vesting it in the Presi- 
dent. He did not argue the question with reference to the 
particular President or the actual Congress, but solely with 
a view to the safe and efficient exercise of a power granted 
by the Constitution. While disclaiming any intention to 
criticise either President or Congress, he confessed his in- 
ability to follow either the Act of March 3, 1863, or the 
particular instances of suspension either before or since the 
passage of that act, and he concluded as follows : 

Having, three years since, entered upon the consideration of the 
President's power to suspend the privilege of the Writ, I have thought 
it proper, in a moment of greater calm, and of renewed confidence by 
the people in the political virtue of the President, which gives addi- 
tional vigour to all his lawful power under the Constitution and laws, 
to show that what I then wrote did not proceed from opinions that 
were hostile to the personal liberty of freemen, whatever might be 
their opinions, within any range that does not include treasonable 

389 



HORACE BINNEY [JEt. 85 

designs against the United States; and that it as little proceeded 
from a disposition to curtail the judicial power as the Constitution 
creates it and the laws have organized its tribunals. If the laws work 
freely within the scope of the Constitution for the defence of our 
Union and unity as a nation, there need be no fear that either the 
Union or the Constitution will break down in the hearts of the people 
by the weight of any extra authority the Habeas Corpus clause gives 
to the government in seasons like the present, which the calm judgment 
of the supreme adjudicating power shall deliberately sanction as fairly 
comprehended by the grant. 

In careful arrangement, clearness of statement, and 
depth of reasoning this pamphlet equals anything that Mr. 
Binney produced at any period of his life, but it is not sur- 
prising that thereafter he undertook no more such tasks. 
While it was in press occurred the surrender of General Lee 
and the assassination of President Lincoln, so that the actual 
publication was delayed until the latter part of May. 

(To J. C. Hamilton, Esq.) 

Philada., 17 Apr., 1865. 
Little could you have anticipated, when you were writing your 
late letter to me, the horrid event that was to occur on the evening 
of the same day. It has shrouded us, just after the most consummate 
victory our arms have had, and on the eve of our Easter rejoicings. 
I really wept, as did all my family, on the receipt of the intelligence. 
When the whole scene spread itself before me, — the theatre, the lights 
and smiles, his wife at his side, with his friends around him, the absence 
of all guard, which he never would have, and of all appearance of 
necessity for it, and his real goodness and kindness of heart, which 
everybody acknowledged, and his undoubted honesty and zeal to do 
what he thought his duty, — it really overpowered me. There has 
been nothing like it in history, and nothing could have occurred so 
characteristic of the spirit which slavery engenders, and has in so 
many other instances marked the course of rebellion in the South. 

390 



1865] ASSASSINATION OF LINCOLN 

They have murdered our helpless old men and women by their gueril- 
las, and have left children to starve. They have starved to death, or 
to death's door, more than twenty thousand of our soldiers. They 
began in violated oaths, and in treading the honour of the soldiers 
into the mire, and plundering anything that was stealable. The 
Southern officers in the Cabinet showed themselves to be insensible to 
the obligations of honour and honesty. There has not been one inci- 
dent or mark of that chivalry they talk of, from beginning to end; 
and now they, that is to say, their spirit and principles, have mur- 
dered the man who has shown the most benignity towards them, and 
have endeavoured to murder Seward, who had less to do with them 
than any other minister. Slavery, depend upon it, is the only thing 
that could have so corrupted the old English and Scotch blood. . . . 

I should like to know what General Halleck thinks of police 
measures, of more stiffness and sternness of public manners, of less 
shaking of hands, and open access. We began right in Washington's 
time. His carriage suited the station. But everything that Jefferson 
did in measures and in manners, in great things and in small, has been 
whittling us down to shavings in all that regards dignity. This 
murder may be a reason for not riding with the snaffle at all 
times. . . . 

{To Sir J. T. Coleridge.) 

Philadelphia, 12 May, 1865. 

Your most kind letter of Good Friday brought me the gratifica- 
tion which comes with all your letters, perhaps more than the general 
very high average, from the kindness with which you took in good part 
my too familiar chiding for your apparent undervaluation in one 
instance of my assured regard for you. I am sure that we two cannot 
finally misunderstand each other, tho' I have seen your face only for 
half an hour, and you have never consciously seen mine. The touch 
of hands is undoubtedly a great thing to complete the electric chain ; 
but a strong charge of positive feelings and principles easily leaps & 
chasm to the sympathy on the other side. 

Your letter has come to me in the midst of great events in my 
country, and shortly after one of the most painful and melancholy 

391 



HORACE BINNEY [Mt. 85 \ 

that this or any other nation has experienced from the wicked destruc- 
tion of a single man's virtuous life. We have passed from tears to j 
indignation, and from indignation to tears, continually since its 
occurrence. You know all this, however, by the newspapers, and 
I will not detain you by any description of it, or by any comment I 
upon it. 

Let me say that our political order under the Constitution was 
immediately reinstated, and that, notwithstanding what you may have 
heard of President Johnson's inauguration day as Vice-President, I 
have no belief that the circumstances were the effect of a habit, and 
still less of a confirmed habit; nor have I any serious fears for the 
reconstruction of the government in reasonable time, if foreign powers 
will permit us to come to it in peace. If the slave-holders will let 
slavery go, as they must, and give their aid to the application of free 
labor, as I think they will, they will in general be cordially assisted 
in their recovery, with such exceptions of personal leading, and fraud- 
ulent and cruel following only, as cannot be overlooked. It is not 
desired by the best men in our country, and is not probably intended 
by President Johnson, nor would it consist, we suppose, with either 
justice or national dignity, that the crime of high treason, aggravated 
as it had been, should be obliterated from our morality or our public 
policy. But this people of the North and West is, I believe, in their 
present temper and habits, incapable of sanguinary retaliation. . . . 

Let me say, in answer to your suggestions about my further 
writing and printing, that I have neither ambition nor pretentions 
as a writer, and that if I had either or both, my waning sight pre- 
cludes any effort in that direction. I hurt one of my eyes last winter 
by writing a paper on the nature, range, and extent of the power to 
suspend the privilege of the writ of Habeas Corpus under our Con- 
stitution. I differed from both President Lincoln and Congress in 
regard to the nature and extent of the power, and particularly in 
regard to the ouster of the judicial department from all cognizance 
of the cause. Though I am not particularly desirous of submitting 
to your eye anything that I write upon constitutional law, I will send 
you a copy in a few days. 

392 



1865] HABEAS CORPUS 

Same day. 

I was about closing my letter, when the postman brought me your 
last of 27 April. 

I knew you would condole with me, and as sincerely as possible, 
and more on my account. I knew you would tell me so. But Mr. 
Seward lives, and is recovered from the stabs of the assassin, and from 
all but the injury by the fracture of his jaw, when his horses took 
fright, and he was thrown or jumped from his carriage. The parties 
to the assassination are now on trial in Washington. 

I am able to add that we have this moment official intelligence 
that Jefferson Davis has been captured, with his wife and official 
family, in the southeast of Georgia, seventy-five miles southeast from 

Macon. 

15 May. 
We have further official intelligence that on the 10th May a 
regiment of Michigan cavalry surrounded his camp an hour or two 
before daylight. Another regiment of Wisconsin cavalry in the same 
pursuit, taking the Michigan regiment for rebels, attacked them, and 
lost some in wounded on one side, and two killed on the other before 
the mistake was discovered. The firing alarmed Davis, and he put on 
a dress of his wife and attempted to escape in the woods, but was 
betrayed by his boots and taken. We have as yet no account of the 
gold and silver he was trying to run off. Cromwell, I think, would 
not have done this. How it would have been with Napoleon I. I will 
not surmise. 

(To Dr. Lieber.) 

Philada., 26 June, 1865. 

I send you by mail this morning two separate copies of Part 
III. . . . 

If you think the last paragraph of my pamphlet is not trans- 
parent, I would have you recollect that the Act of 3 March, 1863, 
intercepts the Supreme Court, or rather, meant to intercept it. I 
meant to reprove the attempt by saying that no power which that 
tribunal could deliberately sanction as fairly included in the Consti- 
tutional grant, would alienate the people at such a time from the 

393 



HORACE BINNEY [^Et. 85-86 

Constitution and Union. That was of course the same as saying that 
it was impossible for the Supreme Court to deduce the power of im- 
prisonment without cause or offence from the Habeas Corpus clause. 

Upon the whole, I do not think the ruler in this matter at Wash- 
ington was candid in regard to Part I. In the Proclamation in Sept., 
1862, the executive power was clutched, and then extended in two 
directions, directly against the express warning of that paper, — 1, by 
general and prospective suspension ; 2, by ignoring the necessity of 
any complicity with rebellion ; and Congress sanctioned both excesses. 
If there had been a reasonable intimation that the government did 
not think I had gone far enough, I should have been satisfied; but 
they left me to be taken as the suggester of all. I always intended to 
leave a denial of this behind me, doing the government the least injury 
in my power; for I heartily wished them success in every point and 
particular of the contest. . . . 



394 



1865-66] DEATH OF MRS. BINNEY 



XV 

LAST YEARS 
1865-1875 

ON the morning of December 5, 1865, Mrs. Binney 
passed away. For more than seven years she had 
been crippled by rheumatic gout, bearing her ever- 
increasing sufferings with the utmost patience and cheer- 
fulness. The loss was keenly felt by her husband, then 
approaching his eighty-seventh year, but he bore it as one 
who expected a speedy reunion. Nine months later his son 
Horace wrote of him : " I do not think that he is less vigorous 
in body than before my dear mother's death, but sometimes 
he seems so. I begged him to come up with my sister Susan, 
and let his grandchildren take him about in this picturesque 
region [the Delaware Water Gap]. He replied that though 
his legs were pretty good for his years, they were not what 
they had been, and that he meant to stay at home or near 
home, and prepare his wings. The words show whither his 
thoughts are constantly winging. I perceive no difference 
in the activity or vigour of his mind, and he continues to take 
a quiet interest in national politics." 

{To Sir J. T. Coleridge.) 

Philadelphia, 28 February, 1866. 

I cannot tell you how much your letter of 26th Dec. affected me. 

It came to hand only on the 24th of last month. Your interest in my 

great bereavement was soothing to all my family, particularly to my 

daughters, to whom I imparted your letter ; and the trouble you had 

395 



HORACE BINNEY [Mt. 86 

taken to copy for me the affecting memorial of his wife, by Jones of 
Nayland, was as strong a proof of the sympathy you felt, and of 
your desire to turn me to a case of like affliction, remembered and sus- 
tained by this good man in a most affectionate as well as Christian 
spirit, as I could have received from a brother. I thank you for it, 
with all my heart. Jones of Nayland is well known here. We have 
esteemed him so much as to reprint in this city a part of his works, all 
of which I believe are accessible to me in our City Library; but his 
letter to Dr. Glasse was not previously known to me. In several re- 
spects I could follow him in calling up the characteristics of my most 
pure, loving, and beloved wife. I have not at this time, however, the 
disciplined and composed spirit to attempt a parallel for your eye; 
but if you will imagine a union of nearly sixty-two years — and for a 
large portion of that time you can have no difficulty in doing it — of 
mutual love and esteem, cemented on the wife's side by as sweet a 
temper as was ever given to woman, by a graceful person and car- 
riage, and by a most wise and watchful care and discretion in all that 
regarded the education and principles of her children and the order 
of her household, and without a single instance in all that period in 
which she gave cause or thought of reproach to any one in the relation 
of husband, child, or friend, you will require nothing else to show you 
what a grief her death has been to me. I strove for many years to 
dress my temper, manners, and good will to all in her as a mirror, and 
I am grateful to her for the effect of it. I have never felt from any 
other example so strongly the truth and the consolation of St. John's 
declaration that, " If we love one another, God dwelleth in us, and His 
love is perfected in us. Hereby we know that we dwell in Him, and 
He in us, because He hath given us of His Spirit." Though for more 
than six years, after an active, temperate, and healthful life to the 
age of seventy-six, she was confined to her couch by rheumatic gout, 
and was deprived of hearing except thro' a trumpet, neither her care 
for her family, nor her interest in her children and many descendants, 
her friends, or her poor connections and dependants, ever abated a 
jot. Her beautiful eyes and her love of reading and the composure 
of her mind continued without change; and while for active super- 

396 



1866] DEATH OF MRS. BINNEY 

intendence her place was necessarily supplied by an unmarried daugh- 
ter, now of priceless value to me, yet her judgment, her accurate 
memory, and her affections continued to be the resort for consultation 
and direction to the last month of her life. No man, I think, was ever 
bound to a wife more than I was to her; and since her death I have 
in twenty instances half -turned to that empty chair, as if I could 
again refresh or assert myself by that communion to which we were so 
much accustomed. I hope to find it elsewhere. I know that I must 
soon follow her ; and I devoutly wish that I may be worthy to follow 
her. I cannot trust myself to record for you the touching proofs, in 
her few intervals of rest during the last fortnight, when signs rather 
than words had to pass from us to her in response, of her desire to be 
at rest, while her love for all she was leaving was as vivid as it had 
ever been, and of her only wish that we should not pray for her con- 
tinuance. She expressed with great strength her confident hope of 
pardon for her sins from the mercy of God; and took with her out 
of life the same loving heart with which she had lived in it for nearly 
eighty-three years. I beg you to excuse me, if I have said too much. 

I hope it will be agreeable to you to learn that, although we have 
had a rather severe winter, and of course a very retired one, my health 
is still fair, and that recently I have been able to resume my exercise 
on foot, so necessary to the continuance and enjoyment of it. From 
your remaining so late at Heath's Court, and your saying nothing in 
your last letter about your removal to Torquay, I infer that your 
own health has improved, and shall be glad if your letters shall here- 
after confirm it. 

You will learn at about the time when you will receive this that 
our return to a harmonious Union is threatened with some obstruction, 
by a difference of opinion between the President and a large majority 
in the two Houses of Congress. It has appeared formally in regard 
to the enlargement of the powers given by an Act of Congress during 
the time of Mr. Lincoln, and still in force ; but from the President's 
declarations at a public meeting in Washington the difference goes 
further. His veto of the Freedman's Bureau Bill, which two-thirds 
of the Senate, where the bill originated, did not suppress, though the 

397 



HORACE BINNEY [^Et. 86 

bill had passed that body unanimously, would not of itself have 
caused the sensation which has ensued ; but his language at the public 
meeting was in a high degree undignified and indiscreet. Some of our 
papers speak of it as a repetition of the scene at the President's inau- 
guration as Vice-President. Privately I have heard another matter 
suggested, — an unsound condition of mind. I have not at present a 
decided opinion upon the merits of the real question, — the immediate 
restoration of the Southern States to representation in Congress, — 
further than this : that I am clearly of opinion that some amendment 
of the Constitution ought previously to be made, changing the present 
rule of representation, which would augment the representative num- 
bers of those States by the whole number of freemen, blacks included, 
after the census of 1870. There are members in both houses, some of 
them what are called extremists, who would institute universal suffrage 
and let all freemen count without regard to colour. The President is 
the other way. I incline to leave the question of suffrage to the States 
until after the next census, perhaps longer ; but after, say, ten years 
to give the right of suffrage to every freeman. The question is a 
very difficult one, both practically and theoretically; and so, indeed, 
is the whole question of securing practical freedom to the late slaves, 
now constitutionally free. It may give rise to fearful parties. My 
own fear is that it will bring back the old predominance of Democ- 
racy, which you know I do not like. . . . 

(To the same.) 

Philadelphia, 7 Aug., 1866. 

I am thankful to you for your letter by Dr. Leeds, and par- 
ticularly for the copy of your notices of Mr. Keble contained in the 
packet to my son ; also for the photograph, which seems to be a copy 
of a better one which you sent me in Sept., I860, and which since its 
arrival has been framed and is suspended in one of my offices where 
I habitually sit. . . . 

Your notices of Mr. Keble are most interesting, and excellent 
in all points. It was the perusal of some or all of these in the Guar- 
dian that made me think, and, I believe, say, in a recent letter, that 

398 



1866] NEGRO SUFFRAGE 

you were not likely to approve entirely a further notice or life of 
Keble, written by another person. You knew him so long and well, 
and loved and honoured him so sincerely, and appear to have so well- 
defined a judgment in regard to his qualities, and faculties, and withal 
so careful a pen in your account of him, that his full biography by 
any other writer must be an extraordinary one to satisfy you. I have 
never read biographical notices of any one that pleased me in all 
points as well as yours of Mr. Keble. The good taste of them all is 
as striking as their pure affection and perfect respect for their sub- 
ject. But I am never to know him better in this life than I do by 
what you have written of him. 

The events of the war on the Continent have been so different 
from the general expectation, and have come so rapidly upon us, that 
few seem ready to express an opinion of the final result. It will be 
very strange if England shall have nothing to say in regard to what 
seems to portend a complete change in the conditions of such States as 
Austria and Prussia. Perhaps it is well for England that Lord 
Derby's ministry has not strength enough to go far towards inter- 
vention, if there should be an inclination for it. We are brought up 
here, you know, to believe that if a people are strong enough to take 
care of themselves, alliances and even very close and intimate relations 
with other governments are undesirable. We call them entangling, 
and avoid them. Surely if any nation is sufficiently strong for this 
purpose, it is England. The main point is to unite her own people, 
and to content them reasonably with their representation. Whether 
she will be able to do this is the great question. I heartily wish that 
you may get to the good end of it, if there is one, but if the develop- 
ment of the political mind in England shall resemble what it seems 
to be approaching in religion, according to some accounts, you and I 
may deem ourselves fortunate in living before the age that is to witness 
the promised improvement. 

We shall have a very animated canvass for the House of Repre- 
sentatives in the next autumn. A very large convention is to take 
place in this city on the 14th instant. It will consist of the most 
prominent men from all parts of the Union who wish to sustain the 

399 






HORACE BINNEY [JEt. 86-87 

President. In the beginning of September, one on the side of Con- 
gress will meet in the same city. And from these we shall learn the 
issues we are to decide upon ; and the coming vote will probably settle 
the matter for a couple of years. But although I take no part in 
politics, I cannot make up my mind on either side. In my judgment 
there is wrong and right on either side, and no one will be able to 
separate in his personal action the wrong from the right. In such a 
case, are we bound by sound ethics to take neither? I rather think I 
shall try to quiet my conscience by voting for the men I think the 
best. But what do the best men become in party action? . . . 

(To the same.) 

Philadelphia, 22 Nov., 1866. 
The course of the President of the United States, shortly after 
I received your penultimate letter, was so extraordinary that I de- 
ferred writing to you until I should learn the result of the elections 
that were to follow ! and now, when I sit down to give you a short 
account of this, I am gratified by receiving another letter as recent 
as the 3d of this month, so full of kind remarks, and suggestive of 
other topics, that it has put President and elections pretty much out 
of my head. I may say, however, in regard to that subject, that 
while the President, in the progress of his late tour, was sometimes 
indecent, and always unwise, and the elections have answered him 
with all but unanimous opposition, I have some fears that Congress 
may, at its approaching session of December, imitate his violence and 
attempt his removal by impeachment. I sincerely hope that this will 
not happen. Of the sufficiency of the alleged grounds for impeach- 
ment I have not formed an opinion; but supposing their sufficiency, 
the condition of the nation, the incomplete representation of the Union 
in Congress, and the still more imperfect provisions of the Constitu- 
tion for such a case, together with the excitement which the impeach- 
ment will produce, make the prosecution of an impeachment most 
inexpedient. What is especially wanted, in rebuke as well as remedy 
for the alleged excesses of the President, are dignity and moderation 
with firmness. These, I think, will exonerate the people from any 

400 



1866-67] PRESIDENT JOHNSON'S POLICY 

discredit abroad, through the conduct of the President, and prove a 
sufficient remedy for anything he has already done. If he shall posi- 
tively obstruct the operation of the laws of Congress, another remedy 
may be required; but I have not the least fear, nor do I learn that 
any one has, of the application of military force to the case on either 
side. The character of the American soldier, as well as the nature 
of the controversy, is supposed to make such a recourse impossible. 
In a few weeks we shall be better able to judge of the whole matter; 
but I cannot omit writing in the mean while. . . . 

Reform threatens you, and I suppose will continue to do so for 
an indefinite time. I should like to ask an English reformer, of the 
most moderate and reflecting character, whether he has fixed in his 
own mind a limit, and what it is ; and if he has fixed such a limit, I 
would ask him to prove that England would and could stop at that 
limit. If he could not prove this, I should say reform will have no 
end, but a change of government. Universal suffrage means universal 
power of the people, in their totality as numbers merely, to do what 
they please with their government. Mr. Bright, I suppose, means 
revolution. 

My son Horace thanks you for your kind remembrances in your 
last letter. He is as good a son as lives, and wanting in no quality 
that is necessary to his father's happiness. 

May I beg you to present to Lady Coleridge my sincere and 
affectionate respects. I assure her that there is as little formality in 
this as I trust and believe there is in the kind messages which your 
letters have more than once conveyed to me of like nature in her behalf. 

(To the same.) 

» Philadelphia, 18th April, 1867. 

I am grieved to learn from your letter of 25th March that you 
have been ill; and only something less so, that since the pressure of 
your attack has passed away you have been put upon a short allow- 
ance as to reading and writing. If your illness was attributable in 
any of its symptoms to an overworked brain, nothing could be more 
reasonable than the limitation; but it went to my heart to learn 
26 401 



HORACE BINNEY [Mt. 87 

further, that perhaps your engagement with the life of Mr. Keble 
was among the employments which led to these symptoms. Although 
you appear to consider that as only seeming overwork, my own expe- 
rience would lead to a different conclusion. . . . 

I don't wonder that you are perplexed by American politics, — 
the politics of reconstruction. It is not easy for many Americans, 
even those who concur in the main, as I do, with the measure of Con- 
gress, to understand and approve them. It may surprise you to hear 
that, among other methods of overruling the Reconstruction Act, 
recently passed over the President's veto, leave has been asked of the 
Supreme Court by more than one of the late seceding States, to 
file bills to enjoin the President not to execute the Act because it was 
unconstitutional. The President himself directed the Attorney-Gen- 
eral to oppose the petitions; and after argument, the Court refused 
the leave. I do not hear of any dissent among the Judges. In conse- 
quence of the division, 5 to 4, on the constitutionality of the Test 
Oath and of the Military Commission, this plan of filing bills of 
injunction has probably been attempted to draw the Court into the 
ranks of opposition against Congress. It will be equally bad for the 
court and the country if they should succeed upon any grounds that 
are not perfectly firm. 

I cannot help expressing to you my opinion that the President 
himself has been the voluntary cause of the rather ominous aspect of 
this question of reconstruction. Without a shadow of authority that 
I can perceive in the Constitution, he assumed to do the whole work 
of reconstruction himself. When the Southern armies surrendered, 
and his power as commander-in-chief became almost null, and his 
executive power wholly inadequate to the work of either treaty making 
or legislation, he did not convene either House, but went on, veils 
levatis, as if there had been but one power in the land, to determine 
all the new relations that had been produced between the seceded 
States and the Union by the abolition of slavery, by the abandonment 
of all the former constitutions of the States on their own part, and 
by the forcible overthrow and extinction of all the new ones they had 
adopted. This was the origin of our present difficulty. He con- 

402 



1867] PRESIDENT JOHNSON'S POLICY 

nected with this usurpation a policy — his policy he called it — which 
flattered the Southern people, and intensified, if it did not even breathe 
life into, the hope of the South, then apparently extinct, to gain by 
restoration a position in the Union from which they could renew their 
opposition to the Union. I have always sympathized deeply with 
the desire of the ruling party in Congress to defeat this policy, and 
to put an end forever to all attempts to restore slavery, either in 
form or substance, or to administer the government in such a manner 
as would prepare another secession. I need not express any opinion 
of the President personally. I shall, if I live, rejoice to see him leave 
the office, to such peace and obscurity as he will find at the end of his 
strange career. 

As to your questions of reform, I fear you will have them re- 
newed, until you will get something into your Constitution that will 
disturb you as much as imperfect or incomplete representation does 
now. My hopes, I believe, are the same as your own. 

My son Horace thanks you for your kind message. He requests 
me to say in advance of what he may write you at another day, that 
the course of some persons in New York in regard to the Keble me- 
morial has given him the labour of much correspondence and vexation 
of spirit. The alteration, by Mr. Keble's direction to his executors, 
of a line, indeed a small word, in the " Thoughts in Verse" on the 
Gunpowder Treason, has been the occasion of comments which greatly 
disturb the progress of the memorial. He perseveres, however, and 
means to persevere ; though I suppose he fears that what shall be done 
in Pennsylvania will be done without concert with New York. 

I beg you to inform me by letter, if only of two lines, that your 
health improves. I do not ask for your revisiting the life of Keble 
until some months are past; but I shall be anxious for your health 
till I hear of its restoration. 

Give my best regards to Lady Coleridge and your family. I 
am delighted with what you say in confirmation of what I learni 
from other sources of your son's high and lucrative position at the 
bar. His course in Parliament has been just such as I expected it 

would be. 

403 



HORACE BINNEY [JEt. 88 

(To the same.) 

Philadelphia, 4 Nov., 1868. 

I renew my salutations to you this morning, after our election 
yesterday of President and Vice-President, resulting in the choice of 
Grant and Colfax by a vast majority. The morning's paper gives 
a result of 233 electoral votes for Grant and Colfax out of a total 
of 296 ; and to shew the power of the telegraph, the editor of one of 
the gazettes says that he had received returns during the last night 
and the present early morning from every State in the Union but 
three. 

I am tranquillized at present by this result ; for a more danger- 
ous combination than that which was opposed to Grant and Colfax 
it is impossible to conceive; the worst certainly that in my long life 
I have known. It not only threatened a new rebellion, but, in prepara- 
tion for it, the ruin of the public credit and the utter prostration of 
public morality. 

The complete failure of so flagrant a conspiracy tranquillizes 
me, therefore, for the time, and the peace which it promises for a 
few years to come would suffice for my time, if I looked no further 
ahead; but the cause, to which I have often referred in previous 
letters, as likely to rule the condition of government in this nation, 
still remains at work, and will at no distant day recover its influence 
and restore the sway of democratic government of the worst kind. 
The North and the South will never have the same public interests, 
either foreign or domestic. They will continue to be divided from 
each other in every way but one, — the wish and the ability to combine 
for the purpose of ruling the national government; and they cannot 
do this with success, except by a union of the worst sections of Democ- 
racy in the North with the false and hypocritical oligarchy of the 
South. When I say never, I ought perhaps to say for a long time. 
But the spontaneousness with which, after such a rebellion, they have 
come into such a combination as [at] the recent election, shews an 
elective affinity deeply seated, though of a very strange kind. How- 
ever, I will say no more of our politics. 

404 



1868] ELECTION OF PRESIDENT GRANT 

Tho' I am your debtor in every way, I have desired much to hear 
of your health during the last semestre. Your son is often before me 
in the newspapers, or in blue-books; and if he is doing as well in 
health as in professional and public service, it should satisfy his father, 
as well as his friends. But my sympathy is more naturally with you, 
and my longing has been in this direction. If it does not interfere 
with your convenience, or the advice of your physician, let me have 
a short letter to inform, and I hope relieve me ; and if you can say a 
word about the Memoir of Mr. Keble, the more pleasant will be the 
relief, as it will shew that your work is accomplished, and my life 
perhaps not too far spent to enjoy the fruit. 

My course of life in the summer and autumn seems to promote 
the kind of health which is allotted to my old age, — not vigorous in 
the proper sense, rarely permitting considerable effort, but rarely or 
never calling for medical advice, enjoying a fair appetite, exempt 
from every pain of body, a very fair sleeper, and sufficiently indiffer- 
ent to our hot weather. I drive from town to country during the 
summer, dividing my week between the city and the fields, and taking 
from my daughter's family of eleven children, more perhaps than 
from the healthful air, the animation and spirits which are so con- 
ducive to equable health. I really want nothing, now that the political 
battle of the day has been fought and well won, but to see you, to 
hear you, to feel your hand, and to look into your eyes. But the 
photograph which hangs before me is all that I shall see of you here. 
I think it is not a bad wish for me, that I may see you hereafter, face 
to face. 

In a letter to Mr. Hamilton, written on November 21, 
Mr. Binney said, " So far as bodily health is concerned I 
am about as well as a month ago, and much better in regard 
to ease of mind on the probable events of the future four 
years of our country. The election of Grant has quieted 
many fears, and has inspired great thankfulness for the cer- 
tain departure from office and influence of Johnson next 
spring." This feeling of satisfaction, however, did not blind 

405 



HORACE BINNEY [Mt. 88-89 

him to a less pleasing feature of the election, an evil which 
has of late become more serious in Philadelphia than it was 
in 1868, so that his words of warning might well be repeated 
to-day. 

Unless [he went on to say] we take the lesson which the frauds 
and violence of the last election teach us to our very hearts and souls, 
now and constantly onward, to kill and not simply to scotch this ter- 
rible anaconda, our election rights, which is to say, all our political 
rights, in no long time will be as worthless as a mess of pottage. Tell 
your Union League not to pause, nor put off to another election, the 
efforts which the evil demands. It involves not merely public faith, 
but private property and both public and private liberty. It must 
convert all laws into one, the law of force, unless the best part of this 
nation means to be trodden under foot by the worst. Now and to- 
morrow and the next day and continually the friends of honest and 
upright government must not only be awake, but stirring. The course 
ought to be to expose and lay open the frauds and violence to the 
bottom, though no hope of immediate relief shall come in any case. 
We should search and go to the quick in every case, by either party. 
I do not say I hope, but I think I know that there is no other mode 
but instant, constant, and continued exposure. This I have said here, 
and shall say so to the last. 

(To Sir J. T. Coleridge.) 

Philadelphia, 4 April, 1869. 
Neither am I going to write you a letter just now, having done 
more than enough, in my double sheet in February. Nevertheless I 
feel as if I were loaded and primed for another salvo to express the 
honour and thanks I owe you for your charming memoir. 1 In all 
sincerity I think it the most effective and best biographical work I 
have ever read. My son Horace thinks the same for himself. I do 
not know when I can get it out of his hands again for another reading. 






1 Of the Rev. John Keble. 
406 



1868-69] COLERIDGE'S LIFE OF KEBLE 

He says he keeps it for his Sunday reading; and I agree it is very 
good for that. But he would have done better for me if he had fol- 
lowed my plan of putting together a week of Sundays, and reading 
it twice. It would have had a third and perhaps a fourth reading by 
me before this time. All concur in its praise, I see, on your side of the 
water, — high, broad, and low, with just such preferences as make 
the harmony richer. One at least of your critics agrees with me in 
thinking that it is as good a portrait of yourself as it is of Keble. 
But I say no more of this just now. I confess I am not glad that 
Keble's letters to Froude have been found and sent to you. Keble 
wants nothing, I think, that is likely to be obtained for him from 
that source ; and perhaps there may be a little more of his severity to 
recusants in his letter to a brother enlisted in the same war. However, 
Keble and Froude may be trusted safely with you and you with 
them. I hope the letters will not aggravate the labour of the new 
edition. . . . 

(To the same.) 

Philadelphia, 16 July, 1869. 
If I had written to you as often as I have thought of you since 
I received and read and re-read your memoir of Mr. Keble, I should 
have heard the groans of the post-office, tho' I should not have heard 
yours ; for I have learned from that memoir, I think, that you are a 
person who does not groan audibly under any weight ; a great comfort 
to me, when I find this in a correspondent. I learned that among 
other things from that book, which will be precious to me while I live ; 
the sum of all, in one aspect, being, that there will never be so good 
a biography of you as you have written of yourself in that work, 
without using a word to that end purposely. I might better say 
" portrait" than " biography." The biography will say more of you, 
and more particularly; but it will say nothing truly, which some of 
your features in the Memoir do not express with perhaps more per- 
suasive truth, and with a resemblance that will strike better than any 
description. You are, according to my notion, the happiest author of 
my time, to have written, out of unprepared materials, and after no 
serious study, the most pleasing and popular memoir of the whole 

407 






HORACE BINNEY [Mt. 89 

century, at an age when you thought your writing faculties were 
gone. All my children have read it. I have read it three times, and 
parts of it a fourth, in the second edition; and we are all of one 
mind, that it is entirely felicitous, both in its scope, as you assumed 
it, and in its execution, and that no one ever succeeded better in 
making everybody love his friend as much and as justly as he loved 
him himself. If this praise is disagreeable to you, I must beg your 
pardon; but I do not see why it should be, for it has not the least 
particle of insincerity in it, and is, moreover, the only return we can 
make for your care for us in the preparation of the book. 

You will not object, however, to a word or two of more direct 
praise from me of what I think was Mr. Keble's most striking attain- 
ment. My opinion is not altogether derived from your Memoir, 
though the Memoir verifies and confirms it. It scarcely comprehends 
his classical and theological learning. I am incompetent to judge it. 
Nor does his poetical imagination enter into it, though I have loved 
the " Christian Year" since I first read it, and love almost all of his 
verses in the " Lyra Apostolica" and most of his " Lyra Innocentium," 
and several of them, not all, in a collection of his poems made since 
his death. Indeed, if I had been the collector, I would have omitted 
a few that the anonymous collector has published. None of these 
excellences are in my view when I am thinking of his greatest charac- 
teristic. It is his religious faith, and of the right kind, I mean, proved 
by his works. This thought of him, as a distinction, came to me when 
I was reading his Parochial Sermons ; and it is corroborated by many 
of his personal habits, which I need not advert to. But all Scripture 
is, with him, written by inspiration of God. He does not make any 
argument for it, nor, as I recollect to have met, any assertion of it; 
but you see it in almost everything that he writes, without his saying 
it. Whether the going back of the sun upon the dial, or the parting 
of the waters of Jordan, or any other miraculous event recorded in 
the Old Testament, he speaks of it, dwells upon it, or applies it with 
as much assurance of its truth as he would manifest in speaking of 
what he had seen with his own eyes. He undoubtedly so received and 
held it as infallible or very truth. And this degree and kind of faith, 

408 



1869] COLERIDGE'S LIFE OF KEBLE 

I regard as an inestimable blessing to the people to whom such a man 
preaches and ministers. I have long thought that the reason why so 
many persons of good lives held back from the profession and practice 
of our faith, is that they know or hear of so many persons of good 
understanding who doubt. Doubt is contagious, — very, — more so, I 
think, than the cholera. But, on the other hand, faith, the deep, 
habitual faith of any man, but most especially of a man thoroughly 
versed in the Scriptures as Keble was, reflected in his whole life, and 
even at times in his very silence when the subject is broached or 
touched unnecessarily, or by his distress when brought in irreverently 
or loosely, is even more contagious. There is a wholesome fear that 
helps it, which doubt has not. I have never read any sermons which 
gave me more comfort than these, while they make no literary or theo- 
logical display. They were written to make people, simple people, 
believe; and they must have that effect upon all minds, simple or 
cultivated, disposed to believe. Excuse me for saying so much of the 
book you were so good as to recommend to me. 

There is nothing on this side of the water worth knowing that 
you do not probably know, through your own papers, as well as I do. 
I have come to the conclusion that I shall not be satisfied with things 
in our government while I live, and therefore I do not look much into 
them. I do not see that we have great intellectual power, or what is 
called statesmanship, in our present administration; but I have some 
confidence, and not a little in the President's integrity or fairness of 
purpose, in regard to all public concerns. Our parties are wild, and 
will be so after the Indians shall have been tamed or killed. I do not 
believe that Mr. Sumner's speech has set our people wild on the sub- 
ject of our claims upon England; particularly not the Cabinet. I 
suppose there will be little attempt to renew negotiations until the 
public mind in England is to some degree discharged of the Church 
question. Our Cabinet I think is quite right as to Cuba, and I believe 
are more likely to be right in regard to all other matters than any 
Cabinet headed by Mr. Seward, to whom I never was able to give 
much confidence. He was more of a politician than of a statesman. 
Fish may not be in some points as able, but he is thought to be safer. 

409 



HORACE BINNEY [^Et. 89-90 

I hope and believe that there will be a good and sure settlement 
between yourselves and us. You ought not to have been surprised 
by the rejection of Johnson's treaty. It would have been to me a 
strange thing if, in the high tide of party here, a Republican Senate 
would have allowed such a President as we had, to say nothing of the 
negotiator and his dinner speeches, to get the credit of any treaty 
with England, whether it would or would not have settled matters. 
The better and certainly the safer course would have been to have 
kept off the negotiation, until after the election of the new President. 

We have intensely hot weather upon us. Thermometer in my 
cool office, with pretty large open garden and much shade, at 87° ; 
but it is now 1.20 p.m. My daughter and my son's family are at 
Newport. Too cool generally in summer, for me; or rather too 
electric or non-electric. I never was sufficiently warm there. I am in 
the country ten miles off, with one of my daughters and her eleven 
children, all good children, three or four days in the week. There is 
my restorer of anything that the rest of the week here wears or wastes 
away. And that is very little. The native air is still good for me, 
and my health at eighty-nine and a half very comfortable. 

I hope, my dear friend, that yours is so, and may long be so. 
You have earned it, better than I have. 

Present if you please my respectful regards to Lady Coleridge, 
and to your son, the Solicitor-General, and his ; and say that I really 
think I am a " loving old man," for I love those who are loved by those 
I love, whether they permit me or not; but that I do not pretend to 
be half as " wise" as the word gives me out for. 2 

(To Dr. S.A. Allibone.) 

4 January, 1870. 

1 thank you with sincerity for your kind felicitations. How I 
have walked or crept up to ninety passes my comprehension. With 

2 This refers to a passage in the Memoir, where Sir John had written, apropos 
of certain American admirers of Mr. Keble, " I have the great honour to count 
among my friends, only through the medium of a long and intimate correspond- 
ence (for we have never met), that wise and loving-hearted old man, Horace 
Binney, the great citizen of Philadelphia." 

410 



1869-70] LATER YEARS 

little or no care of health, often exposing it, never making a cosset 
of it, eating, drinking, like my companions, with early or late hours, 
as pleasure or work required, I have got on; and after this dream of 
so many years, wake pretty fresh to the fact that they are all gone and 
have produced little fruit. If there is any secret in my endurance, 
I rather think it lies in my not taking long steps at any time, or in 
any kind of progression ; and I have no similitude in any wood of the 
forest except it may be barren oak, a capital wood to last, and not 
bad to burn, but I think producing nothing better than few and small 
acorns. I am not at all proud of them. 

One of the greatest wonders of my time is how I got into your 
" Dictionary of Authors." But there is one truth, to which my long 
life has given as much emphasis as almost to any other of my expe- 
rience. Marriage and friendship, birth and death, health and sickness, 
promotion and neglect, and, in general, good and evil are prodigiously 
affected by what is almost the greatest of accidents, — proximity, 
nearness in point of distance, to the promoting, formulating, or deter- 
mining cause. My real friend on the matter of longevity (if it be a 
good) was my proximity to a place for superb health for four years 
from eight to twelve, and thence from twelve to eighteen to another 
place for like benefit to body and mind, both in the country, the first 
near and the next two degrees north of my native spot, which was 
within gunshot of my present residence in Fourth Street. But the 
motive cause of each country change was proximity to my family. 
So in many others of the most material events of my life. So also, 
though not for me, nor for you, perhaps, likewise, I have got as an 
author into your most capital dictionary; so far as I have gone in 
my delectation in the only volume yet published ; the only thing that 
can challenge the quotation, — 

" The thing we know is neither great nor rare, 
We wonder how the d — 1 it got there." 

Proximity has done me that good or ill, and it has done me a 
good many other services or disservices of various kinds. 
Do not think that this is mock modesty. 

411 



HORACE BINNEY [^Et. 90 

I want to live to see your forthcoming volumes, and to possess 
to the last the eyesight to master the necessarily small type. 

Towards the end of January Mr. Binney's oldest son, 
then just sixty-one years old, and up to that time in seem- 
ingly good health, was seized with a sudden illness, from 
which, after a partial rally, he died on February 3. This 
loss of a son whom he not only deeply loved, and who de- 
served such love if any son ever did, but whose strong char- 
acter and clear intelligence were as a firm staff to the father 
in his great age, was indeed a crushing blow. It would have 
caused no surprise had it proved too much for his own hold 
upon life, but his extraordinary vitality being matched by 
abiding faith and perfect resignation, he was able to bear 
up without apparent diminution of either bodily or mental 
vigour. In fact, although his son's death threw upon him 
certain professional duties which he would otherwise have 
escaped, he was able to perform them without serious injury. 

The death of Horace Binney, Jr., removed the one 
man who, as far as intimate personal knowledge went, would 
have been the best fitted to prepare some record of his 
father's life whenever the time for such a work should come. 
Those friends who were anxious that there should be such a 
record seem to have brought before Mr. Binney the question 
of a literary executor, if not biographer, as the next letter 
indicates. 

(To Dr. S. A. Allibone.) 

245 S. Fourth, March 1, 1870. 
I regretted not to be able to see you with Mr. Winthrop; but 
I have been partly indemnified by reading his beautiful eulogy upon 
Mr. Peabody. 

Your sympathy in my still fresh and grievous affliction is very 
grateful to me. I have received so many evidences of like feeling 

412 



1870] DEATH OF HORACE BINNEY, JR. 

from persons known and unknown to me, that the reversal of the 
general course of nature, and so unexpectedly and strikingly in this 
instance, seems to have made an intensive impression upon those who 
have known the name and relation. 

What my dear son would have attempted from his filial love, had 
he survived me, I cannot say. It is no aggravation of his loss that 
his deep affection for myself and all my family will not now mislead 
him. As to my own provision for what you are so obliging as to 
suggest, it is now still more remote and unwelcome than the thought 
has always been ; though your own aid would be the most friendly 
that I could find, and the most judicious, were it not required to be 
creative. Whenever I have been invited to think of the subject, I 
have been saved by one vanity from falling into a more dangerous 
one. I think myself too good a judge of books to be misled by the 
vanity of thinking that anything I have written is worth preserving 
in a more permanent form than I have hitherto given to it. 

You will permit me, however, thus to close my note, after as- 
suring you that I am, 
Dear sir, 

Faithfully and cordially yours, 

Hon: Binney. 

(To Sir J. T. Coleridge.) 

Philadelphia, 14 April, 1870. 
You have been very considerate in writing me two or three times 
since I informed you of my great bereavement ; and very fortunate 
has it been for me, as I could not have entitled myself to the favour 
by my own letters, as I have been pretty much under a medical inter- 
dict against reading or writing since the middle of March, or when 
I received and answered a very kind letter from the Solicitor-General. 
The cause of the restriction upon me was overwork, imposed upon me 
by the death of my son, — work which was indispensably necessary to 
be done, and which no one could do for me, for it was the getting 
back into my own consciousness the affairs and accounts of an im- 
portant trust for two French ladies in Paris, daughters of a gentle- 
man in this city, of whose will I was the surviving executor. The 

413 



HORACE BINNEY [Mt. 90-92 

trust was created by his will, and after I had settled his estate, and 
held the trust alone until I was seventy, my son was at my request 
made a trustee, and to him I had committed everything for twenty 
years, looking to his conclusion of it as survivor. 

You cannot imagine the distress this duty of settling and closing 
the trust myself brought upon me, until at length the sympathy 
between my digestion and my brain brought on some symptoms which 
alarmed my children and placed me under the orders of my good 
family physician. Thank God ! the accounts are all ready for settle- 
ment and the appointment of a successor, and the symptoms have 
abated so much that I am partially restored to my old liberty, and 
hope the opening spring will emancipate me as much as so old a person 
can be. . . . 

I have not read Dilke's " Greater Britain," nor has it, I think, 
received much notice in our best literary paper, The Nation. I must 
say that since De Tocqueville's book, I have read few English or 
French books on this country. In general they are entitled to little 
confidence, and as little in praise as in dispraise. De Tocqueville was 
a rare man. He knew something before he began to describe our 
institutions. Modern travellers in this country get their facts and 
make their meditations as they travel, and without shaking them 
down into place or out of place, which, as to many of them, would be 
better. 

My paper is at an end, and I must stop. My head, moreover, 
spins a little. I rather think, my dear friend, that I have received a 
wound which is immedicable here; but I have resolved to complain 
of nothing, since I have received infinitely more in this life than I can 
repay by my best behaviour. 

My kind regards to Lady Coleridge. May God bless you both 
and all. 

(To Dr. S. A. Allibone.) 

7 January, 1871. 
I thank you for your kind enquiry. My health is fully as good 
as it ought to be at ninety-one; and whether it be or not, I am content 
and thankful. Mere age, however little of itself, seems to be regarded 

414 



1870-72] LATER YEARS 

by the world as a merit, or an achievement, whereas it is not either one 
or the other. Of the men you name, age is the least of their dis- 
tinctions; and altho' they lived to nearly the same age, their merits 
were of very different kinds and degrees. My impression is, that the 
fame of Lord Mansfield will last longer than any of them. He was 
in my opinion the author of English Commercial Law, and he pro- 
duced an excellent system with very little aid from any other quarter. 
He was, moreover, a statesman, orator, and accomplished man of 
letters. There is no point of comparison, that I know of, between 
Mansfield and Kenyon. Kenyon had little that was great or very 
distinguished in any department. Eldon was a great equity lawyer 
and judge, and, I suppose, a very good common lawyer, while Mansfield 
was very little of the one, and was surpassed by many in the other. 
Lord Stowell was a great admiralty lawyer; and I know him in no 
other department. His brother Lord Eldon's old age, retained his 
faculties much better than Lord Stowell, but Lord Stowell was thought 
to be much more generally accomplished. I do not mean by these 
remarks to make a comparison between any of these eminent men, for 
there is scarcely contrast apparent between them to admit of it. All 
of them probably were not great men for all time. Mansfield in my 
mind comes nearer to it than either of the others. 

(To Sir J. T. Coleridge.) 

Philadelphia, 7 Feb., 1872. 

An alarm which the cable has brought us from England, for the 
continuance of our good relations with her, and which a copy of the 
Queen's speech or address at the opening of Parliament has to some 
degree allayed, makes me think of my relations with you, which are 
beyond disturbance, and will so remain, I think, whatever may become 
of those of our two countries. The Law of Nations will find it difficult 
to make us enemies, whatever our countries may be. It ought to have 
had an exception for friends so much beyond the fighting age. 

A letter which your son wrote me from Heath's Court, when he 
was about leaving you to resume that awful Alexandrine, the Tich- 
borne case, made me a little anxious for you, from the fact he informed 

415 






HORACE BINNEY [JEt. 92 

me of, that your friends had asked you to take part in some approach- 
ing appeal to the Judicial Committee of the Privy Council. I knew 
it would be the best thing for the Church, but I feared it as the worst 
for you. But your letter of December relieved me, where you say 
nothing about it, and enclose for my daughter violets and a primrose, 
and a heart's-ease just pulled from your mid-December garden. Such 
a climate for old age, and I suppose a natal climate too; what an 
ungrateful change to London ! Here we at that time were bound up 
in ice and snow, and with frequent tho' not deep snows we have kept 
on, and so we shall probably continue until to nearly the end of Lent. 

We at last possess in the city a great winter luxury, even more 
than it is in summer, — a park of I think twenty-four hundred acres, 
including, though its medium filum, the river Schuylkill. The 
grounds are in great part covered with noble forest-trees, and the 
views extensive, embracing city, country, and river, and the roads, 
now finished on the western side, so as to make as good a drive as I 
ever saw in Europe. This has been a great recreation for me and my 
daughter nearly every day thro' the winter. With plenty of wraps 
in the close carriage, we have uniformly been able to drive with one 
glass down without the least inconvenience. This I think has greatly 
contributed to my health, which would otherwise have suffered from 
my inability to walk to any extent on our bricks, for they are gen- 
erally uneven, lying at different levels or angles, and turning me from 
side to side most disagreeably, and not safely. Indeed, I have pretty 
much ceased to be a walker; and had I still none but the winter 
country roads to drive over, I should have no exercise at all. My 
health is now better than it was a year ago. I know not that I have 
any other complaint (disease) than old age; of that I make no com- 
plaint whatever — rather thanks. 

We have been greatly distressed by the death of your nephew, 
Bishop Patteson. Some years ago, in one of your letters, you wrote 
of him to me, rather more, however, in relation to his father, your 
brother Patteson, and his urging him to leave him on his mission, tho' 
assured that father and son were to see each other no more in this 
world; and your last letter makes me know more about him, and a 

416 



1872] LATER YEARS 

writer in the Spectator, his college friend at Baliol, Oxford, still more. 
A most interesting person he must have been. His death was martyr- 
dom in reality, though not of either of the three kinds which a note 
in the " Christian Year" speaks of — in will and deed ; in will, but 
not in deed ; and in deed, but not in will. The will was always there, 
no doubt, and his preparation always made for the duty when it 
should come ; but the duty was not present, and even the poor savages 
did not mean to kill their best friend, but mistook him for an enemy. 
So, at least, seems to be the version we get. England should look to 
her subjects in that quarter, both for defence and punishment. . . . 

Still the Tichborne case goes on. It makes me doubt whether 
the law is not in fault for some defect of provision in the case. A 
statute of Pennsylvania while I was at the bar, years ago, rejected 
the exception in an early statute in favour of persons beyond sea. 
How long should such a person, knowing that his ancestor is dead, and 
that he is the heir, be permitted to linger abroad before he comes to 
claim his estate? In these times of steam and lightning speed over 
the world, the license of all limitation statutes requires looking to. 

Your son's admirable opening of the defence must have been a 
gratification of the highest kind to you. Believe me, I envy you not, 
but partake of it vividly. 

I have rambled along without writing a word about the President 
or Congress. The war is not yet begun. It will no doubt come. My 
best regards to Lady Coleridge and family. 

Early in 1872 Mr. Binney made the last contribution 
of his brain and pen to the service of his fellow-men, in the 
plan for an endowment trust for St. Peter's Church. A few 
years after resigning from the vestry of Christ Church, he 
had joined St. Peter's parish, to which in time he became 
deeply attached. With his keen recollection of the beautiful 
churches of England, he probably shared the view strongly 
(but unsuccessfully) advocated by his son and some other 
members of the parish, that the architectural taste of the 
founders of St. Peter's was inferior to their religious faith, 

27 417 



HORACE BINNEY [Mt. 92 

and that the example of the latter would not be lost by erect- 
ing, in the place of the old church, a structure which should 
represent, as far as possible, the best traditions of English 
Gothic, the architecture of that communion to the uses of 
which the building was devoted. At all events, he firmly 
believed that St. Peter's, on the site which it occupied, had 
a permanent work to do in the city, and that its perpetual 
maintenance should be provided for. By 1872 very many 
of the parishioners had removed from that neighbourhood, 
and it was evident that the congregations of the future might 
not be able to support the church as their predecessors had 
done. Realizing that a permanent endowment was required 
to meet these changed conditions, Mr. Binney drew up a 
comprehensive scheme for the gradual accumulation of the 
necessary fund, together with a brief statement of the rea- 
sons for the undertaking. The vestry adopted the plan at its 
Easter meeting, and time has since demonstrated its success 
and utility. In fact, Mr. Binney was able to see, in his own 
lifetime, a substantial beginning of the present endowment. 

By the death of Mr. Samuel Thatcher, of the class of 
1793, in July, 1872, Mr. Binney succeeded to the distinction 
of being the oldest living graduate of Harvard College. 
The seventy-five years which had passed since his own gradu- 
ation had not dulled his love for his Alma Mater, and it 
was with " a pain that has the sadness of sorrow" that he 
learned in November of the serious loss which the college 
had suffered from the great fire in Boston, a loss which, as 
was but natural, he speedily bore his share in alleviating. 

His unusual mental vitality in his last years seems to 
have caused a general impression that his bodily strength was 
similarly abnormal, and hence he was continually requested 
to participate in public meetings long after he had ceased 
to attend them. Thus in September, 1872, when the Penn- 

418 



1872] LATER YEARS 

sylvania Academy of the Fine Arts, of which he was the 
oldest living member, was about to lay the corner-stone of 
its new building, he could say in all sincerity that he would 
gladly have complied with the request, but was forced to 
add, " The thing is simply impossible to me. I have not 
bodily strength to take any part in the ceremony or even to 
be present at it, and should oppose both family and medical 
advice in making the attempt. At the age of ninety-three 
strength of body and mind are worth fostering for private 
use ; but mine are not of the least avail for a public occasion. 
Still I am thankful for health to enjoy old age for some 
purposes, and to be especially gratified by the prospect of 
the renewed career of a liberal and honoured institution of 
our city and country." 

(To Sir J. T. Coleridge.) 

Philadelphia, 10 Sept., 1872. 
I came home yesterday from the country residence of one of my 
sons-in-law, where, with my unmarried daughter, I have passed the 
last two months, coming only about once a fortnight to the city, to 
look after my household, or such matters as called for my action. The 
country air has been pure and the verdure singularly fresh and beau- 
tiful the whole summer; never in my recollection as much so. Fre- 
quent rain, in either moderate or profuse showers, so frequent, indeed, 
as to have done harm to some of the field as well as garden crops, has 
been the cause of this extraordinary greenness of the country, up to 
this second week in September. Not a leaf seems to have fallen or to 
be withered. And yet the heats have been so great and nearly constant 
in country as well as town, that nothing in time past is recollected 
like it, and the lassitude it has caused in old people, especially in 
myself, has sometimes been alarming, and always prostrating body 
and mind. I have not put pen to paper for the entire summer, even 
to reply to letters from two of Horace's girls, who have written to 
me from Ventnor, in the Isle of Wight. . . . 

419 



HORACE BINNEY [JEt. 92-93 

I am very glad to hear that the arbitrators at Geneva have made 
their award. We do not know the sum they have awarded, nor any 
particulars of the award, but it is understood to be sufficient in amount 
and not thought extravagant or excessive on your side. I hope it will 
place our public relations in a good condition and leave no thorns in 
the flesh. Nevertheless, being of kin, we shall probably have the 
usual altercations of kindred of rival interests. We may thank Grant 
for the Treaty. With a Democratic party in power war would at one 
time or other have been the result of the " Alabama," etc., outfits. 
The people of this side will now gradually regard the matter as ar- 
ranged in a fair manner and upon safe principles for both nations. 

I dare say you have not been surprised by the extravagances of 
a democracy, or the selection of Mr. Greeley as the candidate of the 
party to whom he has been all his editorial life opposed, and who is, 
moreover, a person whom judicious persons of any politics would be 
slow to select for their leader in government. To many it seems that 
the selection was the breaking up of the Democratic party ; to me it 
has looked more like the breaking up of the Republican party. But 
without saying what it proceeded from, or will result in, the absurdity 
of my voting for Greeley instead of Grant would be such that I should 
be ashamed and stultified by the vote for the rest of my days. But 
this is not very great praise of Grant as a statesman. His military 
services have been great, and his civil duties as President performed 
with pure intentions ; but his capacity as a statesman is generally 
thought, by those who wish him well, to be of very limited extent. 
I think him honest, and not a good judge of men. His honesty carries 
my vote against Greeley, without the least doubt; but I have little 
hope that his second administration will be much better than the first. 
In our foreign relations he has been sincerely desirous of amity on 
right principles. He has been opposed by some able persons in the 
Senate who were his friends at the outset. The Senate at large we 
think has been for some years past disposed to claim a greater control 
in the executive department than properly belongs to it. Mr. Sum- 
ner has really hurt himself seriously, with our greatest and best think- 
ers, by his course. Grant's path with the body has not been an easy 

420 



1872-73] LATER YEARS 

one, and would not have been to a man of higher civil power, and of 
much wider knowledge of men, and of affairs. 

I hope you have no fears for the Church of England. I cannot 
be persuaded that even a separation from the State (improbable as 
that seems to be) could do her any harm. My courage has been forti- 
fied by the Bampton lectures of the principal of Lichfield Theological 
College, Mr. Curtis. I should be very glad to know what you think 
of the matter. The steadiness of our own Church is thought to be 
unshaken, and her orthodoxy perfectly assured, notwithstanding the 
Illinois case and one or two here which have had like results. 

But my paper is out. I hope your health still enables you to 
enjoy your books and friends. I believe that Lady Coleridge was 
able to visit your son at the bar feasts in May in London. That was 
an achievement, if it took effect as intended. I could not have done 
it, certainly. Pray give my best regards. 

In June, 1873, Dr. Allibone published his collection of 
poetical quotations, dedicating it to Mr. Binney as " The 
Head of the Bar in the United States," and citing, as his 
authority for the title, the statements of Senator Sumner 
and Mr. William M. Evarts, afterwards Secretary of State 
and ultimately Senator. This dedication brought out the 
following letter: 

{To Br. S. A. Allibone.) 

19 June, 1873. 
I found on my office table yesterday p.m. a splendid volume of 
your " Poetical Quotations," and, looking at a blank leaf before the 
title-page, read that it had been sent to me " with the author's compli- 
ments." Struck with the beauty of the book, and pleased by a recog- 
nition of your singular aptitude for such a selection by indexes of 
discriminating titles, I took the volume to my daughter and sat by 
her side to hear her remarks. At her third or fourth comment of 
approval, she said, " But here, did you see this ?" and then dumf ounded 
me by the dedication. " Bless my stars," thought I, " if this is not a 

421 



HORACE BINNEY [JEt. 93-94 

case of sudden insanity in my friend Allibone, I'm no judge, whatever 
he may think of my being the head of the bar. It is a clear case of 
partial insanity for Dr. Kirkbride," and I said as much to my 
daughter. 

" But you won't say this to Dr. Allibone ; you will write him 
your best thanks." 

" Best thanks, of course ; but I will write him the very words." 

" But what do the words mean, ' The Head of the Bar in the 
United States'? You have a gray head, and a very old head, and are 
perhaps the oldest living man who was long at the bar. It does not 
mean a great deal. Besides he cites authorities." 

" That is it. That proves what I say. That shows it to be a 
case of partial insanity. The thing cannot be proved, is not provable, 
is not true; the authorities will be contradicted by other authorities; 
it is not, and will not, be true of me if I live to be as old as old Parr and 
getting more law every year instead of losing all I had. In its com- 
prehensive sense, it is not true of any man at this bar, or at any other. 
In a popular sense, it is merely a compliment and not a very precise 
one." 

And so I tell him, and thank him, and remit to him the pains of 
Dr. Kirkbride and Blockley, and hope his beautiful quotations may 
assuage many a patient in the female's and at least a few in the men's. 

Meaning to solace myself more with the book, if health is spared 
to me, I may add now that the three indexes of authors, subjects, and 
first lines, are in their union or junction new to me; and that they 
seem to be the three links or strands of a chain by which, at most, 
every man holds and associates all the poetry he imperfectly recollects 
and wishes to recall by very words. 

(To the same.) 

7 Jan., 1874. 
I have been waiting three mornings for light in my offices, to 
reply to your kind note. The light has not come, and I know not when 
it will; but my reply must now go, or you may think my memory 
has departed, tho' as yet my years have not. 

422 



1873-74] LATER YEARS 

I thank you heartily for your remembrances and congratulations. 
You have shown very clearly that in point of years I have lived more 
of them than, in the annals of the bar, have been assigned to the most 
eminent English judges. That fact, however, admits of hardly any 
inference. It is true of itself, but it does not prove anything else to 
be true. Certainly it does not even tend to prove that I have lived 
one-tenth as long as either of them in public use and value, or in good 
works, or travelled one-tenth as far into the highlands of legal or 
ethical science, or even lived longer in any sense which distinguishes 
a wise man from a fribble. Therefore I regard the fact of having 
lived more years than a dozen men of the same calling or career in 
another country or in this, however great they were, as a completely 
barren fact. It produces nothing. It produces nothing in the sense 
of causation, tho', as a consequence, it is followed in a few instances, 
or there follows afterwards to me, on or about a certain day of a 
certain month in the year, a very kind letter or two, in which certain 
illogical assumptions are implied, which are flattering, but not at all 
sustainable, and which I could not be seriously thought to adopt, 
unless it should happen (which, I pray God, may not!) that I had 
lived so long as to have survived myself. 

(To J. C. Hamilton, Esq.) 

Philada., 21 Sept., 1874. 

We got back to town the day the rain began, and are all right. 
You have no doubt received my daughter's letter in reply to your 
very kind one. If you had received my last letter to Cooperstown, 
you would have known that my health was as usual, rather firmer than 
before, as it still remains ; but the failure of one letter, and my not 
knowing where you had gone, when you left Cooperstown, were the 
causes of our non-intercourse. 

Who the good lady was who gave the sinister account of my 
health, I do not know. I hope she did not wish me dead, as some 
persons do, who get tired of hearing (horrid blot) that I am living so 
much longer than I ought to do. But that is the way with some 
people. I must live till my time comes ; and I mean, if I can, to live 

423 



HORACE BINNEY [yEt. 94 

contentedly until it does come, whatever may be the fatigue I give 
to such persons by so doing. 

Let me know how you are yourself, and be assured that whenever 
I shall be called hence, you will lose, though a very useless, a very 
sincere friend. 

Excuse my not copying, to remedy the blot. 

(To Dr. S. A. Allibone.) 

8 Oct., 1874. 
You ask me, in your note of yesterday, to select some quotation 
from my own beautiful prose (no doubt) to go into your forthcoming 
work. I should be puzzled to find a single one that would satisfy 
anybody, especially myself. But if there were as many as the army 
of Xerxes, I should feel like the most impudent monkey on earth if I 
myself were to quote a single line as worthy of my selection. Known 
or unknown to others, my conscience would glow with a shame reflected 
from the impudent brass that would confront me on the pages. At 
my time of day it is morally impossible. Nevertheless I am, just as 
much as before your request, your friend and respectful servant. 

Hor: Binney. 
P. S. — Very dark day for a nonagenarian. 

(To Sir J. T. Coleridge.) 

Philada., 15 Oct., 1874. 

I ought before this to have acknowledged the safe arrival of 
your photograph from the original portrait by your son's wife, and 
also your last letter of 27th July. 

The photograph, Judge Hare assures me, is a most excellent 
likeness, and I value it particularly as it was taken from the work 
of Lady Coleridge; but when I place it by the side of the portrait 
which you formerly sent me with your own name and date of Sep- 
tember 2, 1860, I perceive some changes which time has made, and 
some which are the impression of sadness rather than of impaired 
health. It is now framed and suspended in one of my offices, as that 
of 1860 is in the other, and there I shall have one of them before me 
in whichever I sit. 

424 



1874] LATER YEARS 

Your letter is a proof, I think, and hope, of improved health ; for 
that time, at least, improved, and I trust it may continue for years. 
Your resolution to " bide your time, in your own chimney corner," 
instead of taking the wearisome dose of hibernation in Italy or South- 
ern France, is a perfectly wise one. So many things besides climate 
are necessary to the comfort and even the continuance of life in ad- 
vanced years and failing health, that I should make the like decision 
for myself without any hesitation. May it become abundantly clear 
that it has been the best for you ! 

As for myself, my health remains comfortable, but of course 
with little vigour. I have no organic disease, except in the whole 
organism, and few men at my age are without that. The hot weather 
exhausts me, and the cold weather pinches me, as it seldom did before 
I was eighty ; but the pure air of the country, in which I live for 
three months of summer, and a well-warmed house and offices in winter 
and cold weather, prevent much suffering. I cannot walk far, but 
can ride twelve or fifteen miles daily in our park without the least 
fatigue. My sight and hearing are still pretty good, and I still read 
by daylight, and listen to reading at night or in any light with satis- 
faction. Upon the whole I ought to be thankful, and I am. While 
I have any memory remaining, I shall have most affectionate recollec- 
tions of you, and of your many kind letters ; but I write few letters, 
and I think I ought not to ask you even to acknowledge this, which is 
nothing but an acknowledgment itself. . . . 

(To Dr. S. A. Allibone.) 

20 Nov., 1874. 
I should have answered your note of the 18th, and its enclosed 
paper with the signatures of highly respected friends, immediately, 
had I not thought proper to appear, at least, to take time for the 
consideration of the request, 3 or suggestion, conveyed by that very 
flattering paper. But I might have given my reply without a 






8 A request that Mr. Binney would collect and republish his scattered 
writings. 

425 



HORACE BINNEY [JSt. 94 

moment's further consideration than had been previously forced upon 
me by my very advanced age, and by a similar suggestion, made nearer 
home, but not of greater weight, or more respected. . . . 

There are two irrefragable reasons — I may say convictions — 
that it is both impossible and inexpedient on my part to perform a 
task, of which the responsibility would be all my own, by whomsoever 
it might be requested or imposed. They are briefly these: 

1. My life, at my age, would be broken down by the attempt. 
Comfortable as it is made by great caution and regularity, its condition 
is dependent upon the liberty to " far niente." Those who know me 
best, and want me most, if they were aware of such a purpose, would 
apply to some of my legal friends, whose names are subscribed to the 
paper, to have me placed under restraint. No one but myself could 
do the work; and, within six weeks of ninety-five, I may gratefully 
confess that I am past work of any kind. 

2. But the other reason for non-compliance is equally or more 
strong, and the conviction of its force, in the party who is to bear the 
responsibility of an error on such a point, ought not to yield to any 
persuasion by friends, whose judgment on other points he might 
prefer to his own. This is a question of feeling, in some degree of 
taste, and to a certain extent, of the writer's own standard of litera- 
ture. Now, I must say, with all sincerity, that at no time in my life 
have I regarded anything that I have printed as entering into the 
domain of literature at all, or as worthy of assuming any other form 
than that which I gave it. No union, or collection, altogether, or in 
fewer parts, would change their character or bring them into perma- 
nent connection with any literature whatever. 

Pray inform my much respected and valued friends that I am 
proud of their testimonial, but that I am not a particle the vainer for 
it ; for I look upon it, and value it, rather as a moral contribution to 
the character of what I have occasionally printed, and not to critical 
judgment upon it. 

The predominance of the Republican party in Philadel- 
phia after the close of the Civil War, and especially after 

426 



1874] STRUGGLE FOR GOOD GOVERNMENT 

the extension of the suffrage to the negroes, was attended 
by a serious falling off in the quality of the men elected to 
local office. The deterioration was gradual, but it was none 
the less decided; and to Mr. Binney, who, though never 
calling himself a member of the Republican party, approved 
the principles for which it originally stood and still claimed 
to stand, it was very painful to see affiliation with that party 
used as a cloak by men who sought office for themselves or 
others mainly for some personal advantage, or to see local 
offices used as pawns in the game of national politics, in 
utter recklessness of the great injury thereby inflicted on 
the community. Writing to Mr. Hamilton in October, 1871, 
when the great movement against the Tweed ring in New 
York was in progress, he said, " Politics are the real source 
and strength of the fraud and thieving that is everywhere 
prevalent. Party men on both sides are so thoroughly 
bent on their objects, that they will use rascals, and pro- 
mote plunder, even when they profess to hate it. We 
have the robbers in office here. The Republicans will put 
them in office, if they think it will help what they call 
the main chance; and frown on all efforts to organize a 
body that only aims to proscribe their well-known rascally 
candidates." 

For some years Mr. Binney rarely voted at local elec- 
tions, owing to the dearth of candidates whom he could con- 
scientiously support, but in February, 1874, when the mis- 
rule of the majority party had provoked a more determined 
opposition than usual, he was ready to take sides. The sight 
of an aged Federalist in a Republican stronghold, braving 
the chill of a wintry day to vote the Democratic ticket for 
lack of a better, was a striking lesson in non-partisanship, 
all the more so, perhaps, as it turned out that in that contest, 
as in so many subsequent ones, the dead weight of party 

427 



HORACE BINNEY [Mt. 94 

spirit and the " cohesive force of public plunder" were too 
strong to be overcome. This Democratic ballot was ap- 
parently the last that Mr. Binney was able to cast, but, as 
the next letter shows, he remained in opposition to the party 
to which, during the first years of its existence, he had given 
his steady support. 

(To J. C. Hamilton, Esq.) 

Philada., Nov. 23, 1874. 

I am writing this in almost Stygian darkness, for I cannot write 
by lamplight. When I received your letter of ye 18th, I had unfin- 
ished writing on hand, and could not but give much better light 
to its completion ; and then my wearied hand compelled me to put 
off my acknowledgment of your kind note to this morning, when 
clouds and rain from the south have swallowed up nine-tenths of 
daylight. 

In other respects I am as usual, no better and no worse. I am 
glad that you seem to be better, and have a number of years to grow 
even better. I have no such chance. 

... But what is this falling-off to what has happened with the 
great Republican party? If it is not on its back, and its back broken, 
it is at least on all fours, and must come down flat before it can get 
up again under the same name or another. 

Pray write me when you can what men of sense among you think 
or predict is to happen when thorough Democratic rule shall be estab- 
lished. I rely on you in this department. Their opinions are not 
likely to affect me, because I feel certain that I shall be grone before 
1877; but one likes to hear what men think while one lives, and I 
think your report may be relied on. 

Some great change must occur to give honest men, however 
numerous they may be, a possibility in this city to elect honest men 
to office ; for they cannot give the nomination to honest men. Rogues 
who affect to be on their side in politics always combine and succeed 
in getting the pas, and then nominate themselves, or other rogues 
like them, and another ticket becomes hopeless. 

428 



1874] STRUGGLE FOR GOOD GOVERNMENT 

But the darkness grows more intense, and I must stop. Pray 
keep well, and write when you can give me light on the future of this 
country, if you can. 

I cannot see to read what I have written. Please correct what is 
wrong or illegible to your fancy. 

The year 1875 found Mr. Binney still in possession of 
an active and unclouded mind, and with bodily strength not 
noticeably less than it had been for four or five years before. 
He was subject to attacks of rheumatism, and could take but 
little physical exercise, but he drove out for some hours every 
day that the weather permitted. His handwriting had lost 
its firmness, but the letters he wrote, though few and short, 
showed no signs of any mental decline. If he could not read 
as continuously as of old, there was no falling off in the 
quality of his reading, nor in his complete ability to master 
all that he read. He suffered much from the unusually 
severe and protracted winter, which kept him housed as he 
had never been before, but with the spring his customary 
health seemed to return, and his drives in the park had a 
new interest in the sight of the preparations then just begun 
for the exhibition which was to commemorate the first cen- 
tury of our independence, a century which nearly coincided 
with his own life. Some records of his appearance and con- 
versation at this time are found in the note-book of the late 
Mr. Henry Armitt Brown. 

" December 30, 1874. — Met Mr. Carey by appointment 
and went with him to see Mr. Binney. Instead of going 
to the front door and ringing the bell, as I expected, Mr. 
Carey entered the little entrance, and, reaching the inner 
door, knocked sharply twice. A slight noise, succeeded by 
unbolting and unbarring, followed, and the door was opened. 
Mr. Binney himself stood before us. He seemed about the 

429 



HORACE BINNEY [iE-r. 95 

middle height. On his head he wore a black skull-cap. A 
large folio lay open on the table, and his spectacles lying 
beside it showed what he had been doing. Greeting Mr. 
Carey pleasantly, and shaking me by the hand when intro- 
duced, he asked me to sit down, and, having taken up the 
big folio, walked over to the end of the room and placed it 
carefully on the lower shelf; then, returning, took a chair 
facing and between us. After a few general words, Mr. 
Carey spoke of the near approach of his ninety-fifth birth- 
day. ' Yes,' said the old man, ' I shall be ninety-five in a 
few days. I don't know how it is that I have lived so long. 
It has stolen on me unawares. Up at Cambridge they want 
to make a great deal of it, but I tell them they shan't. I 
tell them they shan't [repeating it]. Survivorship is the 
meanest thing in the world. When I was at the bar I never 
could make anything out of a case that had nothing but that 
to recommend it. In my case, the fact is, — as I tell them 
at Harvard, — I have happened to outlive — not everybody, 
thank God! — but a great many dead people.' . . . When 
we had been seated about a quarter of an hour there was a 
pause, when he drew out his watch and, in a very courtly 
tone, said, ' You must excuse me to-day ; I have an engage- 
ment to drive with a lady. The next time come earlier;' 
and, turning to me, ' I shall be glad to see you soon again. 
I will let you into the secret way of getting in. Did you 
notice the way in which Mr. Carey knocked? [knocking with 
his knuckles, as he spoke, on the table]. Well, come to the 
side door and give that knock, and if I'm here I'll let you 
in. That was the old Phi Beta Kappa knock we used to 
have in Cambridge in '93. Come about ten o'clock in the 
morning.' With a few words like these he ushered us out 
in the most lordly manner. I have never seen an old man 
who seemed so much the master of his faculties. I had im- 

430 



1875] LATER YEARS 

agined him much feebler and more broken. In repose, his 
face looks old, but when animated, in conversation, not 
remarkably so." 

" February 10, 1875. — On my arrival at the office I took 
advantage of the hour, and the fact that nothing pressed, 
to call on Mr. Binney. On knocking with two raps at his 
office-door, it was opened, and, to my surprise, he recognized 
me at once. He wore, as usual, his velvet cap, which hides 
the top of his forehead. He drew a chair before the fire and 
bade me do the same. A glance at the table showed me that 
he had been reading John Quincy Adams's Memoirs. I 
began to speak of them, when he started off at once. 
' Adams,' he said, ' was in Congress with me in '33 to '35, — 
an admirable man. I confess I have never quite made up 
my mind on the question of the bargain charged as made 
between him and Mr. Clay, though I think the friends of 
both parties must have had an understanding.' He con- 
trasted, with some degree of earnestness, Adams's refusal 
to appoint a relative to office, even at the request of the 
President, with the practice of great men of to-day. He 
spoke of the change for the worse in public men, — mentally 
and morally. ' When I was in Congress there were men of 
ability and honour in public life, but the bad ones were get- 
ting the ascendency very rapidly, and it has been growing 
worse ever since.' I said I thought that General Jackson 
had done much to debase politics. ' Yes,' he replied, ' un- 
doubtedly.' . . . ' Clay,' he said, ' was a delightful man to 
talk with and hear speak. He had a fine voice and manner, 
but his speeches did not read well. Webster, on the other 
hand, sounded sometimes dull, but the next day what he had 
said seemed excellent in print. He had extraordinary power. 
I have heard him sometimes when he seemed to lift me up 
to my tiptoes. He was not a great lawyer. He had not 

431 



HORACE BINNEY [JEt. 95 

thorough training or deep learning, but in the argument of 
constitutional questions he had no superior.' I spoke of the 
Girard Will case as one in which he had not sustained his 
reputation. ' He had the law against him,' was the reply; 
' and, besides that, he didn't understand the law in that case. 
Had he done so he would have been in a far worse position 
than he was.' But in the Dartmouth College case, — ' Ah, 
there he had the law with him. In constitutional questions,' 
he repeated, ' he was unequalled. I have always said that 
he was superior even to Chief Justice Marshall, and you 
know I heard his speech in the Jonathan Robbins case when 
I was a law student.' . . . * Marshall and Webster,' he went 
on, ' were, of course, very different. The former seemed to 
make link after link, until he had joined two points with a 
perfect chain. His logic was wonderful. But Webster 
seemed to strike a succession of ponderous blows. He bore 
down everything before him by his weight.' Further talk 
about Mr. Webster led Mr. Binney to speak of Jeremiah 
Mason, ' one of the greatest lawyers and greatest men this 
country has produced.' ' He was a giant in size, and, by the 
way, the Chief Justice of Massachusetts was here to see me 
the other day, — an enormous man, too ; nearly as tall as Mr. 
Mason, — Mr. Gray.' He asked me if I had read his (Ma- 
son's) Memoir and Correspondence, prepared by Mr. Hil- 
lard, of Boston. I had not. With that the old gentleman 
rose and searched for a moment in one of his bookcases, but 
could not find the volume, giving it up at length with the 
remark that his daughter arranged his books when they got 
in disorder, and that he would send it to me. He asked me 
if I had received an invitation to go to the celebration which 
they are to have at Lexington on the one hundredth anni- 
versary of the fight. I answered that I had, and hoped to 
go. ' I am too old for such journeys now,' he said. ' At 

432 



1875] LATER YEARS 

ninety-five and over I cannot go so far from home.' . . . 
After more than an hour's talk I took my leave. The inter- 
view was most interesting in every respect. There is nothing 
to indicate great age in Mr. Binney but the loss of teeth, 
which often makes his words a little indistinct. He is neither 
blind nor deaf, and every faculty seems unimpaired. He 
stoops considerably, but his eye — a deep blue — is still bright. 
... In everything he says you notice the man of power. 
His language is always correct and beautiful." 

"June 7, 1875. — Called this morning on Mr. Binney. 
He was in his back office. . . . The back office is a large, 
pleasant room, with straw matting on the floor, and two 
large windows opening out upon a broad garden full of 
trees and flowers. Mr. Binney wore his little cap, as usual, 
and seemed to me at first rather feeble for him, or, to speak 
more correctly, less vigorous than usual. ... I turned the 
subject presently upon Mr. Adams's Memoirs, the sixth 
volume of which he had just commenced, and remarked that 
I thought it strange that so able and learned a man as Mr. 
Adams, living in the period in which he filled so large a 
place, had taken no part in the discussion of the great con- 
stitutional questions which arose. He seemed to have con- 
tributed nothing to constitutional law. Mr. Binney replied 
that ' the reason was that Mr. Adams did not take naturally 
to legal questions, and was not a well-read lawyer. He 
practised a little in Boston, but not much, and he did not 
feel much interest in, or enthusiasm for, the law. But he 
had a natural gift for politics and government, and they 
had the wisdom in Massachusetts to perceive this political 
capacity very early, and to send him to the Senate. He 
acquired in time a thorough knowledge of European and 
American affairs, and in some things he was the fullest- 
minded man I ever knew. But he was no lawyer. When 

28 433 



HORACE BINNEY [JEt. 95 

Mr. Cheves was president of the Bank of the United States, 
the question arose as to the duty of the bank to redeem the 
notes of various States in government notes at Philadelphia, 
and Mr. Cheves, who was not much of a banker and stayed 
here but a short time, — but a very estimable gentleman, — 
came to me for an opinion. I gave him one, and said that 
the bank had to do it, and pointed out that the arrangement 
as made by General Hamilton was one mutually advan- 
tageous for the bank and for the government. He was not 
satisfied, and Mr. Adams insisted that the opposite view 
must be correct. Together they got an opinion from Mr. 
Pinkney, in which he agreed with me. I think they got six 
opinions and all the same way. Even then Mr. Adams said 
he supposed it must be the law, as it was so stated by gentle- 
men, — about whom he made some complimentary remark, — 
but he couldn't be satisfied.' ... I asked Mr. Binney if he 
had known Mr. Pinkney. He answered, never; he had 
never seen him. But he was a man of great power, un- 
doubtedly. He then went on and told me of a case in which 
[he] 4 had defended a ship that was brought in as a prize, — 
the first case of the kind, and the principles of maritime and 
prize law were new then and the questions that arose un- 
settled. ' I won the case here, and it went to Washington. 
I won it also, I remember, at the Circuit Court before Judge 
Bushrod Washington. For some reason I did not go to 
argue it in the Supreme Court; I don't remember why. 
Mr. Pinkney was engaged on the other side and made a 
great argument, and she was condemned. Judge Washing- 
ton dissented, but gave no opinion; but he spoke to me 



4 Mr. Brown's note-book states that Mr. Pinkney (erroneously referred to as 
Mr. Pinckney) defended the ship, which is of course a mistake. Being Attorney- 
General at the time, he naturally conducted the argument for the captors on 
appeal. 

434 



1875] LATER YEARS 

afterwards of the matter, and said I ought to have gone 
down, that Mr. Pinkney's argument had carried the court.' 
... I spoke of the change in the bar and the want of am- 
bition among its members to become accomplished lawyers 
in the highest sense. I said I knew of but few men of my 
time who seemed to me to have a very high ambition. Mr. 
Binney continued : ' I am so much retired, and see so little 
of the world in my privacy here, that there are many things 
which I do not see in which I would take interest. Doubt- 
less you are right, and the bar has degenerated. All that I 
have seen and heard confirms your opinion. But you must 
remember that the times have changed, for Philadelphia, up 
to 1806, and even much later, was the commercial metropolis 
of the country. All the underwriting was done here; the 
great cases arose here or came here for settlement. It is not 
so now. We have necessarily grown provincial, and, with 
the decline in the relative importance of the cases which it 
tries, the bar has fallen off. But,' he went on with much 
animation, ' remember, the more commonplace the bar the 
better is the chance for ability and industry; for there is 
always work enough in Philadelphia, and important work 
too. If the general run of lawyers do not strive for the 
first places, there must be all the more room in the front 
rank. Cherish an honourable ambition. Be strict in attend- 
ing to your business. Prepare yourself with care. Be in- 
dustrious and study hard, and resolve, no matter what the 
temptation may be, never to do an unworthy action or take a 
mean advantage, and by all means' — here he leaned forward 
and placed his hand upon my knee — ' cultivate your talent 
for public speaking; then, take my word for it, the reward 
will come.' Continuing in this strain, he spoke next of the 
changes in the condition and prestige of the bench. ' To 
think that there should be chief justices of Pennsylvania by 

435 



HORACE BINNEY [^Et. 95 

the score! But we mustn't slander any one; there are some 
excellent gentlemen among them.' I asked him if he did 
not attribute the decadence of the judiciary to the elective 
system? He said, ' No; I don't think that to return to the 
appointive system would entirely cure the trouble. Gover- 
nors are partisans and are apt to appoint partisans, and, 
on the whole, I think the people may be trusted to choose 
men as fit as those whom governors would select; but the 
office should be held for life during good behaviour, — that 
would make the incumbent independent of all political in- 
fluence for a re-election. When the late convention 5 met 
I urged these views upon several gentlemen without avail. 
But to make our judges dependent every few years on the 
favour or fancy of political conventions is all wrong. Too 
much cannot be said against it.' After a two hours' inter- 
view I rose to go. He shook me very warmly by the hand 
and said I must come again soon. . . . The impressions 
made on me by previous interviews were deepened by this. 
It seems quite impossible, as you hear Mr. Binney talk and 
watch the changing expression of his intellectual face, that 
he is within five years of being a hundred years old. His 
voice is not weak, and were it not for the loss of teeth would 
not sound like that of a very aged man. His eye is bright. 
When I came in and he saw me, it kindled with a pleasant 
light of recognition as many a younger man's might not 
have done, no matter how friendly his feelings to me. He 
is not deaf. The instant I knocked at the door I heard his 
prompt ' Come in.' He stoops very much, but it is rather 
the stoop of a scholarly habit than of age. The most re- 
markable thing about him is his conversational power, — if 
I pass by the extraordinary memory which shows itself in all 



The Pennsylvania Constitutional Convention of 1873. 
436 



1875] DEATH 

he says, — for he remembers everything, even the name, to- 
day, of the vessel which he defended, — the first prize brought 
in in the war of 1812, and which I have forgotten already. 
In what I have written of his conversation I have tried to 
recall his words, but I have been able to do so very imper- 
fectly. He reminded me all the time when he spoke of what 
Chesterfield says of Bolingbroke, that his eloquence was of 
so pure and fine a character that were his ordinary and 
familiar talk taken down as it fell from his lips it might 
have been printed without correction either as to the method 
or style. It is without question the purest, smoothest, most 
dignified, and elegant conversation I have ever heard." 6 

Not long after this last interview, Mr. Binney went to 
his son-in-law's country place, as usual in the summer, but 
thought himself quite able to endure even the heat of the 
city. He still kept in his own hands much of the manage- 
ment of his affairs, and as they had always called him to the 
city for the first few days of August, he saw no reason for 
making any change even in his ninety-sixth year. He there- 
fore returned to his house, but was almost at once taken ill. 
He slowly sank more and more, and on the morning of 
August 12 his long and active life came peacefully to an 
end. Four days later his body was laid to rest beside that 
of his wife, in the church-yard of St. James the Less. 

On Saturday, August 14, the bar of Philadelphia met 
at noon in the Supreme Court room, to honour the memory 
of him who had so long stood at its head, and who had him- 
self repeatedly paid a like tribute to those who had gone 
before him. Mr. Justice Strong, of the Supreme Court of 
the United States, presided, and the addresses testified to a 
universal conviction that the biographer of the leaders of 



"Memoir of Henry Armitt Brown, by J. M. Hoppin, pp. 102-115. 

437 



HORACE BINNEY 

Since the death of Horace Binney the city authorities 
have seen fit to perpetuate his memory by giving his name to 
one of the public schools not far from the spot where he 
lived, and also by carving his features on the key-stone of 
an arch of the City Hall, inside the main southern entrance. 
As this entrance leads to the courts of law, and upon it the 
word " Justice" is inscribed, there is some appropriateness 
in the site chosen; but not one in ten thousand of those who 
pass under the arch ever notice the face which looks down 
upon them, and still fewer have any idea whose face it is. 
It is a pity that there has been no accompanying inscription 
to arrest the attention of the passer-by. Perhaps the most 
striking inscription would have been simply the concluding 
words of the speech on the Removal of the Deposits, — " The 
spirit of party is a more deadly foe to free institutions than 
the spirit of despotism." 



440 



CHARACTERISTICS 



XVI 

CHARACTERISTICS 

IN the opening words of his Eulogy upon Chief Justice 
Marshall Mr. Binney had said, "The Providence of 
God is shown most beneficently to the world, in 
raising up from time to time, and in crowning with length 
of days, men of pre-eminent goodness and wisdom. ... It 
is a provision in the moral government of the world, to hold 
out constantly to mankind both the example of virtue for 
imitation and its precepts for obedience ; and the moral con- 
stitution of man is never so depraved to be totally insensible 
to either." The inducement to a nobler life, he said, " comes 
to all, and at all times, and with most persuasive influence, 
in the beautiful example of a long career of public and 
private virtue, of wisdom never surprised, of goodness never 
intermitted, of benignity, simplicity, and gentleness, finally 
ending in that hoary head which ' is a crown of glory, if 
it be found in the way of righteousness.' To this example 
all men of all descriptions pay voluntary or involuntary 
homage. . . . The very circumstance of its duration affects 
all hearts with the conviction that it has the characters of 
that excellence which is eternal, and it is thus sanctified while 
it still lives and is seen of men. When death has set his seal 
upon such an example, the universal voice proclaims it as 
one of the appointed sanctions of virtue ; and if great public 
services are blended with it, communities of men come as 
with one heart to pay it the tribute of their praise and to 
pass it to succeeding generations, with the attestation of 
their personal recognition and regard." 

441 



HORACE BINNEY 

While Mr. Binney would have been the last to claim 
that these words, written of the great chief justice, could 
ever be appropriately used of himself, no one who knew his 
life and character could fail to see their applicability. He 
did not indeed occupy any such position before the nation 
and the world as did Marshall, but within his own sphere and 
his own community he undoubtedly won the first place, being 
practically regarded by all as the ideal lawyer and the ideal 
private citizen. 

His ultimately unique position in Philadelphia was no 
doubt due in part to his great age. He was the visible link 
which bound the days of the Centennial to those of the 
Revolution. He had seen and known Washington, Hamil- 
ton, Adams, and the other leaders under whom the colonies 
had become a nation. He had striven to perpetuate the 
Federalist party in the days of Madison, he had fought 
against the ascendency of Jackson, and he had defeated 
Webster in legal argument. He had brought his acute mind 
and able pen to the aid of Lincoln, and to him Grant had 
come to pay the respect due to his years and reputation. But 
it was not only the length of his life which was remarkable. 
During the seventy-five years since he had come to man's 
estate no one could point to any failure on his part to respond 
to the call of duty, to any good cause that he had deserted, 
to any bad cause that he had espoused, or to any act in which 
he had not shown absolute fearlessness as well as absolute 
devotion to what he believed to be (and what the test of 
time usually proved to be) the right principle. Partisan or 
professional opponents might criticise him, but they could 
never impugn his motives, his sincerity, or his courage. It 
was the character of his life, and not merely its length, 
which made him, as Sir John Coleridge truly said, " the great 
citizen of Philadelphia." 

442 



CHARACTERISTICS 

In winning his position as a leader of the bar, and ulti- 
mately of the community, Mr. Binney's greatest strength 
lay in his thoroughness and his sincerity. From the first he 
had the confidence of the bench, and (as he wrote, in review- 
ing his career) " I endeavoured by all my professional as 
well as private fife to show that I was not unworthy of it. 
I may say to my children that I never knowingly committed 
an injustice towards a client, or the opposite party. I never 
prosecuted a cause that I thought a dishonest one, and I have 
washed my hands of more than one that I discovered to be 
such after I had undertaken it, as well as declined many 
which I perceived to be so when first presented to me. I 
always regarded it as criminal to neglect the necessary prepa- 
ration for my causes; and I believe all the bar would say 
that no gentleman of my day came generally better prepared 
for his trials, or less disposed to put them off. I at all times 
disdained to practise any stratagem, trick, or artifice for the 
purpose of gaining an advantage over my adversary; and 
unless I thought him unfair, I was generally willing that 
he should see all my cards while I played them. I can truly 
say that I am not conscious of having lost anything by this 
candour, but, on the contrary, have repeatedly gained by it, 
If my client was at any time suspected, I had no reason to 
think that I was by either the court or the bar; and how 
many balancing cases, in the course of thirty-five years prac- 
tice, this sort of reputation assisted, I need not say. . . . 

" I rarely, if ever, made a contract for a fee to depend 
upon the successful issue of the cause, and I never in a single 
instance stipulated to have a portion of the thing recovered, 
whether lands, houses, or anything else. My clients were of 
a description which rendered this mode of compensation as 
unnecessary as it would have been disagreeable to me. I was 
content to leave the fee to them, at the termination of the 

443 



HORACE BINNEY 

suit, and I never had a word of controversy, nor am I aware 
that I ever caused the least discontent in regard to a fee in 
my life. How much of the unpopularity of the profession 
has arisen from the practice of contingent fees, contracted 
for in country practice, I need not say. It never prevailed to 
any extent in the city, and certainly not in commercial suits." 

In view of the above, one can readily imagine what Mr. 
Binney would have thought of the New York statute which 
makes the fees of a lawyer retained in a suit a lien upon any 
fund recovered therein by his client, or of the attempt to 
enact a similar law in Pennsylvania. 

Many anecdotes are told in illustration of Mr. Binney's 
high standard in professional and business matters. Once, 
when an impatient litigant pressed him to insist upon the trial 
of a cause in violation of the courtesies of the profession, he 
was seen to spring from his chair, and, with flaming eyes, 
tell his client that if he were dissatisfied he could reclaim his 
fee, but that he himself was not the man to take advantage 
of the act of Providence, by which the opposing counsel 
was laid on a bed of sickness. On another occasion, in the 
trial of an action on a promissory note, when the defence of 
set-off had failed, he rose, and, facing the bench, said, in a 
tone of withering scorn, " My client commands me to plead 
the statute of limitations." The rebuke was not lost on the 
wealthy defendant, who personally withdrew the plea; but 
also, it is said, concluded that for the future a counsel with 
so keen a sense of honour would be too expensive a luxury. 

Mr. Binney had what is undoubtedly an advantage to a 
lawyer, — a commanding presence, — and perhaps it was even 
a greater advantage in the more dignified days of a century 
ago than it is to-day. When in his prime he was tall, 
well-proportioned, and erect, his face strikingly handsome, 
with high, broad forehead, firm mouth, and well-set, piercing 



CHARACTERISTICS 

eyes. He was a good horseman, and his temperate life and 
love of the open air not only kept up his strength but pre- 
served his features unchanged to a remarkable degree. At 
seventy-five he did not look over sixty, and to the last the 
weight of his many years bent him but slightly, while, though 
time silvered his hair, his eyes retained their strength of 
expression. 

Whatever subject came before him was examined thor- 
oughly, and his ability to search and sift the most complex 
questions, until he had mastered all their details and bearings, 
was only equalled by his capacity of imparting his own 
knowledge in the most convincing way. This faculty of ex- 
pression seems to have been allied to his taste for music, the 
art which appealed to him more than any other. 1 His refined 
musical sensibility, aided by a thorough comprehension of 
the kindred art of language, guided, as it were, his voice 
and pen, clothing his thoughts in words as harmonious as 
they were appropriate and effective. Quickness of percep- 
tion, ready play of fancy and humour, the treasures of a 
well-stored mind always at his command, made his conversa- 
tion a delight to all within the circle of his familiar inter- 
course, while, when he spoke in court or in public, his strong, 
well-modulated voice and grace of gesture never failed to 
attract his audience, nor his ready flow of well-chosen lan- 
guage to hold their attention. His straightforward nature, 
moreover, gave the tone to all his words, and the strength of 
his arguments was equalled by their perfect sincerity. 

His love of literature was always strong, and most 
marked in his later years, when his comparative leisure en- 
abled him to freely indulge this taste, and to acquire thereby 



1 He once wrote, " In my own family, music was the common language of 
every member of it." (Letter to Hon. D. A. White, February 19, 1855.) 

445 



HORACE BINNEY 

a cultivation usually confined to those who have made letters 
a profession. While his reading covered a very broad field, 
he read less for mere recreation than to furnish his mind 
with food for thought. For this reason he attached great 
value to indexes, and came, as he once wrote Dr. Allibone, 
" to regard a good book as curtailed of half its value, if it 
has not a pretty full index. It is almost impossible, without 
such a guide, to reproduce on demand the most striking 
thoughts or facts the book may contain, whether for citation 
or further consideration. If I had my own way with a modi- 
fication of the copyright law, I think I would make the 
duration of the privilege depend materially on its having 
such a directory. One may recollect generally that certain 
thoughts or facts are to be found in a certain book ; but with- 
out a good index such a recollection may hardly be more 
available than that of the cabin-boy who knew where the 
ship's teakettle was, because he saw it fall overboard. In 
truth, a very large part of every man's reading falls over- 
board; and unless he has good indexes, he will never find it 
again, how much soever he may look for it. 

" I have three books in my library which I value more 
than any other there, except the very books of which they 
are a verbal index. Cruden's Concordance of the Bible, 
Mrs. Cowden Clarke's Concordance of Shakespeare, and 
Prendergast's Concordance of Milton. We may not want 
such frequent soundings on the charts of most books; but 
the fuller they are the more time they save, and the more 
accurately they enable the reader to explore and retain in 
memory the depths of the best authors for his present occa- 
sions." 

Mr. Binney's resistance, except in a few brief instances, 
to all calls to public life, was not due to any selfish shirking 
of a citizen's obligations, and still less to any lack of deep 

446 



A LIFE OF PROTEST 

patriotism. Rightly or wrongly, he firmly believed himself 
unfitted by nature for the lif e of a public man, and certainly 
his independent and masterful spirit was ill disposed to the 
concessions and compromises by which public measures are 
usually carried, but no man could have been more keenly and 
sensitively patriotic. Probably the very sensitiveness of his 
patriotism helped to make public life repugnant to him, for 
it is certain that the spectacle daily before him during his 
term in Congress — the motives and methods of those who 
directed the affairs of the government — gave him deep and 
real pain. His love of his country and his concern for her 
honour were so intense that the highest standards of adminis- 
tration could alone satisfy him; and believing, as he did, 
that the prevailing standards were very low, and that he and 
the few men who thought with him were powerless to raise 
them, he felt that public life would be for him a perfectly 
useless martyrdom, which he was not called upon to undergo. 

Those, indeed, who believe in swimming with the tide, 
and denounce as pessimism all criticism of prevailing con- 
ditions and tendencies, will see no commendation in what was 
said of Mr. Binney by a friend, — that " his greatest eminence 
is in the protest which his life has been against all about him." 
To those, however, who hold that the capacity to form high 
ideals of government, and the power to understand political 
conditions and tendencies, are talents which the possessor is 
not justified in burying merely because the exercise of them 
is unpopular, a life of protest is never fruitless when the 
protest is in itself proper. Its teachings may be disregarded 
by the multitude, but they will always be treasured in the 
hearts of a few, to bear fruit in more favourable days. 

Though a believer in party organization within proper 
limits, and an avowed member of the Federal party as long 
as its organization existed, Mr. Binney, for the last sixty 

447 



HORACE BINNEY 

years of his life, was simply what would now be called a 
Mugwump, a man who could not conscientiously adopt all 
the principles of any one party, and hence, while supporting 
the one with which he was most in accord, holding aloof from 
actual membership in any. In fact, this independence was 
so thoroughly a part of his character that if the Federal party 
had, like the Democratic party in 1896, kept its name and 
organization while changing its principles, he would have 
withdrawn from it, and it would have had no more hold upon 
him than had any of its actual successors. This indepen- 
dence was the direct and necessary result of his conscientious- 
ness. He felt himself to be morally responsible for all his 
acts, and that the responsibility could not be evaded by 
attempting to put it off upon a party organization. The 
argument that 

The side of our country must oilers be took, 

An' Presidunt Polk, you know, he is our country. 

An' the angel thet writes all our sins in a book 
Puts the debit to him, and to you the per contry, 

never appealed to him in the slightest. For him the largest 
conceivable majority could not make that wise or right which 
he believed to be foolish or wrong, and while he never claimed 
infallibility for his own judgment on any point, he never 
shirked full moral responsibility for the exercise of it. 

To his mind the subordination of the individual con- 
science to the will of the majority was one of the many evil 
results of democracy. " By far its worst present effect," 
he wrote, about 1840, " is upon the integrity of young men. 
They become hypocrites through their ambition. They sell 
their opinions for popularity. They profess what they do 
not believe. The first of all qualities, integrity, is the lowest 
at market, and the lowest of all qualities is most cultivated, 

448 



VIEWS ON DEMOCRACY 

that of acquiring a mastery over the prejudices and passions 
of the populace. How mean must a young man be who 
foregoes the inestimable satisfaction of always doing and 
saying what he believes to be right, to get power by fawning 
upon and flattering the men who are the very lowest in the 
scale of personal worth? How can this be done, without cor- 
rupting to the very core the youth of this country? And 
what must the men of the country be, when such is the uni- 
versal taint of the young?" 

The democracy to which Mr. Binney was so strongly 
opposed was not that of any one political party. He under- 
stood democracy to mean the rule of a numerical majority, 
claiming to rule simply because it was a majority, without 
any regard to its fitness for ruling, or to whether the ends it 
sought were right or wrong ; and that feature of democracy 
which alarmed him most was the tendency to change wise 
laws and salutory customs to meet the popular whim of the 
day. His ideal was 

A land of settled government, 
A land of just and old renown, 
Where Freedom slowly broadens down 

From precedent to precedent ; 

and democracy, in his opinion, was wholly subversive of such 
an ideal. " I have long thought," he wrote, early in 1864, 
" that if a people possess the frame, the freest and most 
durable government in the world is a constitutional mon- 
archy, with adequate representation of the people, and a scale 
of society so graduated and so established as to prevent con- 
cussions between monarch and subjects, or sudden mutations. 
But we have not the frame, nor perhaps will at any time 
have the timber to make it. I think exactly what Hamilton 

29 449 



HORACE BINNEY 

did, that if our Constitution were fairly administered, it 
gives us the best chance, and yet it is only a chance." 

That Mr. Binney was opposed to what he considered 
democracy did not mean, however, that he approved of abso- 
lutism in any form. He merely believed that the people 
were as capable of tyranny as any autocrat, and that the need 
of protecting the rights of the citizen by law was the same 
under a popular government as under any other. To secure 
such protection there should be, he held, a government of 
law, deriving its authority from the people, and in which the 
people should be fully represented, but a government admin- 
istered mainly by men who were appointed, not elected, and 
who held office during good behaviour and not for any fixed 
term nor at the pleasure of the appointing power. 

His opposition to democracy was based on a sincere 
belief that it was hostile to liberty. Such a belief may sur- 
prise those who have grown up in an atmosphere of de- 
mocracy (or what passes as such), but it cannot be waved 
aside as wholly preposterous. Time has shown that there is 
a very large number of voters who, from motives of personal 
gain, direct or indirect, prefer to surrender their freedom of 
election and to vote as their party bosses dictate. Under 
the complicated nominating system everywhere prevalent in 
this country, and under the defective ballot system in vogue 
in most States, it is impossible to estimate the number of 
such voters precisely, but it is undoubtedly very large. Time 
has also shown that, with the perfection of party machinery, 
the party boss, even without holding office, can be a very 
thorough autocrat. That bossism and party serfdom are 
inimical to liberty is indisputable, and whether they are the 
natural fruits of democracy or a wholly parasitic growth, 
their connection with it is certainly very close. 

Mr. Binney's opposition to the Democratic party was 

450 



VIEWS ON DEMOCRACY 

due to its having made democracy its fundamental principle 
from the start, but he was well aware that after the passing 
of Federalism, the democratic spirit affected all political 
parties. Writing about 1840, he said, " The Whigs are at 
this day more democratic in their devices and principles than 
the Democrats were in the days of Jefferson. There are few 
or no sacrifices of constitutional principle that the Whigs will 
not make to gain power, as readily as the Democrats. Their 
very name is Democratic Whigs; that is to say, they have 
entered into full partnership with those who trade upon the 
principle that the people are all in all, that their voice is v ox 
Dei, that the masses are always right, and that nothing else 
is fundamental in government but this. What the Whig 
affix means, I think it difficult to say. It is certainly nothing 
more than a badge of preference for some matter of admin- 
istration wholly independent of constitutional principle, and 
varying consequently from day to day. To-day it is tariff; 
the next day, internal improvements; the day after, some- 
thing else; but the judiciary is not a Whig question, the 
qualification of suffrage is not a Whig question, the restraint 
upon naturalization is not a Whig question. The only ques- 
tion is how to obtain most of the sweet voices and emoluments 
of government, and this is as much a Whig object as a 
Democrat object, and there is no obvious or characteristic 
difference in the nature of their respective bids." 

After the attempt to destroy the Union had aroused a 
revulsion of feeling in favour of national sovereignty as 
opposed to State rights, Mr. Binney undoubtedly became 
more hopeful of the country's future, believing that if the 
influences of slavery were exhausted, the Constitution would 
have a better chance than ever before of furnishing that 
stable government which its framers had planned. Unfor- 
tunately the bright prospect was somewhat dimmed by the 

451 



HORACE BINNEY 

effects of the spoils system, then running its course un- 
checked in all departments of the government, and present- 
ing, in its inevitable consequences of corruption and misrule, 
a spectacle most painful for any patriot to contemplate. No 
indication of reform being then in sight, he could simply 
hope that this monstrous evil would in time be dealt with, as 
other evils had been dealt with in the past. 

It is unnecessary to dwell upon the religious side of Mr. 
Binney's character, nor upon the warm and loving heart which 
coexisted with his somewhat reserved bearing. The fore- 
going pages indicate what manner of man he was in these 
respects. In contact with men of lower standards than he 
approved, his sterner side often asserted itself; but as the 
retirement of his later years protected him more and more 
from such contact, the occasions for sternness became less 
and less, and his innate kindliness was rarely, if ever, ob- 
scured. As a friend 2 said of him, " It was also in the art of 
growing old that Mr. Binney's example was full of teach- 
ing; his presence had at once a charm and a majesty which 
were due to the high thoughts which were his habitual com- 
panions. As one entered his quiet study or library his gra- 
cious courtesy showed how fruitful, in a true sense, his rule 
of life had been to him, — that early acquired ' art or faculty 
of study.' With him intellectual growth was but another 
name for moral. It is good to think of that aged face with 
its fine outline preserved to the last, that serene and be- 
nignant look." 

Mr. Binney was a man of varied attainments, whose 
every capacity was trained to produce the best results; and 
to produce them not merely for the benefit of those to whom 
he primarily devoted his life, but also, in so far as the times 



' Mr. Ellis Yarnall, in a lecture delivered at Haverford College, January 7, 1902. 

452 



CHARACTERISTICS 

permitted, for the benefit of his city and his nation. " In 
youth a scholar of fairest promise, yet never coveting mere 
intellectual gains as the highest acquisition, achieving at the 
bar the foremost rank at a time when the leaders of the 
Philadelphia bar, to whom he stood opposed, would have 
graced Westminster Hall in its palmiest days, instructing 
the bench with the research, the discrimination, the per- 
spicuity of his arguments; and, while devoted to his pro- 
fession, never relaxing his love of letters ; a proficient in the 
literatures of France and Spain, delighting in history and 
poetry, a close student of theology, he was much more than 
lawyer, much more than scholar. Always, with one brief 
exception, declining political office, indifferent to the honours 
which only waited his acceptance, he furnished a crowning 
proof of his eager interest in political issues and his un- 
flagging zeal for the public welfare when, at the age of four- 
score, he issued from his well-earned retirement to uphold 
the pillars of the state ; and in the unflinching courage with 
which he more than once faced and conquered a perverted 
public sentiment, he merited the tribute paid by the greatest 
Athenian historian to the greatest Athenian statesman, that 
* powerful from dignity of character as well as from wisdom, 
and conspicuously above the least tinge of corruption, he held 
back the people with a free hand, and was their real leader 
instead of being lead by them.' Such is the sway of wisdom, 
of courage, of unsullied integrity." 3 



3 Phi Beta Kappa Oration at Cambridge, June 29, 1876, by the Rev. J. Lewis 
Diman, Professor of History in Brown University. 



453 



INDEX 



Aberdeen, Lord, 152, 155 
Abinger, Lord, 148 
Academy of Fine Arts, 418 
Adams, President, 52; death, 82 
Adams, J. Q., President, 92, 124, 127, 

131, 433 
Alexander, Sir William, 151, 157 
Alienigenae of the United States, 267 
Allibone, Dr. S. A., Letters to, 410, 412, 

421, 422, 424, 426 
Allison, Burgess, 10 
American Philosophical Society, 65 
Anti-Catholic riots, 235 
Apprentices' Library, 75 
Ashburton, Lord, 151 

Baldwin, Mr. Justice, 94 

Banks, " Conversation," 151 

Bar of Philadelphia, leaders in 1800, 
38; its debt to Buonaparte, 60; 
" Leaders of the Old Bar," 282 

Bassano, Duke of, 166 

Berryer, Antoine Pierre, 167 

Biddle, Nicholas, 118, 207 

Binney ancestry, 1 

Binney, Dr. Barnabas, 2; death, 10 

Binney, Elizabeth (Cox), marriage to 
Horace Binney, 48; visit to New 
England, 270; illness of, 282; death, 
295 

Binney, Esther (Mrs. J. I. Clark Hare), 
3; tour in Europe, 136 

Binney, Horace, birth, 2; early years, 
3-9; walks in Federal procession, 10; 
at school in Bordentown, 10-15; re- 
turns to Philadelphia, 15; goes to 
Watertown, 16; in Menotomy, 21; 



at Harvard College, 22-28; studies 
law, 29-37; admitted to bar, 37; ac- 
quaintance with Gilbert Stuart, 42; 
other friends, 44; meets Humboldt, 
46; declines Master's Oration, 47; 
marriage, 48; trustee of University 
of Pennsylvania, 49; political views, 
49-54; in Pennsylvania Legislature, 
54-56; reporter for Supreme Court 
of Pennsylvania, 57; active practice 
begins, 59; director of United States 
Bank, 61; visits Judge Washington 
at Mount Vernon, 63; unsuccessful 
effort to recharter United States 
Bank, 64; president of Common 
Council, 65; baptized and confirmed, 
66; attends Federal convention of 
1812, 67; defence of Pryor, 68; 
views on a lawyer's life, 70; in Se- 
lect Council, 72; views on American 
public life, 73; buys summer resi- 
dence in Burlington, 75; correspond- 
ence with his son at college, 76-80; 
visits Niagara Falls, 80; views on 
slavery, 82; on Adams and Jefferson, 
82; counsel in Harris vs. Lewis, 84; 
receives degree of LL.D., 86; writes 
memorial against tariff, 87; urged 
for appointment as Chief Justice of 
Pennsylvania, 89; eulogium on Tilgh- 
man, 91; urged for appointment to 
United States Supreme Court, 94; 
declines position on Supreme Court 
bench of Pennsylvania, 95; contem- 
plates retirement, 96; election to 
Congress, 97-100; amicus curiae in 
Girard vs. Philadelphia, 101; in 



INDEX 



Washington, 105; speech on removal 
of deposits, 107; dines with President 
Jackson, 110; dislike of public life, 
112; writes minority report on re- 
moval of deposits, 116; surprise at 
course of bank, 118; Sunday speech 
at Baltimore, 120; speech on 
Letcher's case, 122; on coinage, 123; 
on deposit bill, 128; on relations with 
France, 130; eulogy on Marshall, 
181; resigns as trustee of Univer- 
sity of Pennsylvania, 134; goes to 
Europe, 136; in London, 141; in 
Paris, 165; goes to Switzerland, 174; 
to Italy, 176; in Rome, 183; musical 
experiences, 196; returns to England, 
198; to Philadelphia, 201; opposes 
changes in Constitution of Pennsyl- 
vania, 203; refuses payment of city 
loan in depreciated notes, 208; de- 
clines appointment as district judge, 
213; retained in Girard Will case, 
216; argues case, 220; declines sug- 
gestion of appointment to United 
States Supreme Court, 229; urges 
suppression of anti-Catholic riots, 
236; drafts address to governor, 240; 
drafts police and riot act, 241; es- 
pouses cause of Bishop Onderdonk, 
242; opposes city's subscription to 
Pennsylvania Railroad stock, 244; 
letter in regard to anti-gas petition, 
250; vindication, 252; retires from 
all practice, 259; address at Contri- 
butionship centenary, 262; address 
on death of John Sergeant, 265; 
essay on Alienigenae, 267; supports 
consolidation, 268; revisits Menot- 
omy and Watertown, 270; visits 
Hull, 275; pamphlets on Bishop On- 
derdonk's case, 280; sketch of Judge 
Washington, 282; "Leaders of the 
Old Bar," 282; writes on Washing- 
ton's Farewell Address, 285; reads 
Farewell Address before Councils, 
299; views on the secession move- 



ment, 311-324; reply to Lincoln's 
call for troops, 326; views on the 
perpetuity of the Union, 327-333; 
Habeas Corpus pamphlet, 342, 346; 
second pamphlet, 354; views on sus- 
pension act, 356; letter to the Union 
League, 370; third Habeas Corpus 
pamphlet, 388, 393; death of his wife, 
395; death of oldest son, 412; sup- 
ports Democratic city candidates, 
427; appearance and conversation in 
his last year, 429-437; death, 437; 
meeting of Philadelphia bar, 437; 
eulogium on, 439; characteristics, 
441-453 

Binney, Horace, Jr., birth, 66; enters 
Yale College, 76; correspondence 
with, 76; letters to, 79, 80, 82, 85, 
105, 110, 112, 113, 115, 116, 118, 119, 
120, 121, 122, 123, 126, 127-130, 250, 
269; opposes Pennsylvania Railroad 
subscription, 248; in Europe, 269; 
death, 412 

Binney, Horace, 3d, 373, 380 

Binney, John, deacon at Hull, 1, 275, 
279 

Binney, John, 22 

Binney, Mary (Woodrow), marriage, 
2; characteristics, 4; widowhood, 10; 
marries Dr. Marshall Spring, 15; re- 
moves to Watertown, 16; death, 22 

Binney, Mary (Mrs. John Cadwalader), 
birth, 66; visit to Niagara, 80; death, 
96 

Binney, Susan (Mrs. John B. Wallace), 
in Philadelphia, 31, 32; death, 258 

Binney, Susan, 419, 421 

Binney, William, 271-279 

Brackenridge, Mr. Justice, 38, 40 

Bronson, Enos, 45 

Brown, Mrs. Nicholas (Avis Binney), 2S 

Brown, Henry Armitt; visits to Horace 
Binney, 429-437 

Buchanan, President, course of, 311, 
312 

Bunsen, Baron, 188 



456 



INDEX 



Calhoun, John C, views on slavery, 125, 
313 

Campbell, Lord, 145, 147, 149 

Carrington vs. Merchants' Insurance 
Company, 115 

Chase, Mr. Justice, 42 

Chauncey, Charles, 30, 45, 54, 85, 94, 
135, 377; death, 258 

Chauncey, Elihu, 45 

Cincinnati, Society of the, 47, 49 

Clay, Henry, opposes recharter of 
United States Bank, 64 

Coinage Law of 1824, 123 

Coleridge, Sir, J. T., 147, 259, 284, 292; 
memoir of Keble, 406 ; letters to, 293, 
301, 303, 308, 320, 329, 339, 343, 349, 
362, 374, 384, 391, 395, 398, 400, 401, 
404, 406, 407, 413, 415, 419, 424 

Commonwealth vs. Eberle, 74 

Conard vs. Atlantic Insurance Com- 
pany, 92 

Contributionship, the Philadelphia, 262 

Cooper, J. Fenimore, 80 

Cope, Thomas P., 216 

Cox, Colonel John, 48 

Coxe, President Judge, 41 

Cuba, movement to purchase, 269 

Delaware Breakwater, movement for, 
81 

Democracy, Horace Binney's views on, 
298, 329, 380, 448 

Denman, Lord, 147, 149 

D'Israeli, Benjamin (Lord Beacons- 
field), 151 

Dred Scott case, 296, 298, 369 

Elections, fraud at, 406 
England, society in, 162 
Everett, Edward, 82 

Farrar, Samuel, 24, 25 

Federal party, Horace Binney's views 

of, 50; Convention of 1812, 67 
Fisher, Samuel W., 59 
Fisk, Rev. Mr., at Menotomy, 21, 27 



Fitch's steamboat, 14 

France, relations with, in 1835, 126, 
128; militarism in, 165; legal pro- 
cedure in, 167; Bonapartist senti- 
ment in, 172 

Franklin, Sir John, 152 

General Theological Seminary, 83 

Gibson, John B., appointed Chief Jus- 
tice of Pennsylvania, 90; peculiari- 
ties of, 93, 101 

Gibson vs. Philadelphia Insurance Com- 
pany, 59 

Girard, Stephen, 214 

Girard vs. Philadelphia, 101 

Girard Will case, 215-233 

Godshall vs. Marian, 59 

Grant, President, election of, 404; 
re-election of, 420 

Habeas Corpus, suspension of privilege 
of writ, 333, 334, 341; Horace Bin- 
ney's first pamphlet on, 342, 346-353; 
replies to, 353; second pamphlet on, 
354; Act of Congress as to, 356, 388; 
third pamphlet on, 389, 393 

Hamilton, General Alexander, 15; 
share in Washington's Farewell Ad- 
dress, 287; Horace Binney's opinion 
of, 50, 297, 301, 305, 379, 384 

Hamilton, John C, 285; letters to, 295, 
297, 300, 305, 306, 312, 323, 336, 345, 
357, 361, 378, 380, 384, 390, 406, 422, 
428 

Hamilton, General Schuyler, 328 

Hare, Robert, 45 

Harper, James, 100 

Harris vs. Lewis, 84 

Horticultural Society, 86 

Hull, Commodore Isaac, 127 

HuU, General William, 68 

Humboldt, F. H. Alexander von, in 
Philadelphia, 46 

Ingersoll, Jared, Horace Binney enters 
his office, 29 ; counsel in various cases, 
49, 59, 74 



451 



INDEX 



Ingersoll vs. Sergeant, 134 
Italy, quarantine in, 176-182; brigand- 
age in, 182 

Jackson, Dr. David, Horace Binney's 
guardian, 29 

Jackson, President, re-election opposed, 
98; re-elected, 100; removal of de- 
posits, 103; courtesy to Mr. Binney, 
110 

Jefferson, President, 50, 52; death, 82; 
likeness of, 196; Horace Binney's 
opinion of, 289, 290 

Jenks, William, 24 

Johnson, President, policy of, 399, 400, 
402 

Jones, Walter, counsel in Girard Will 
case, 215, 220 

Judicial tenure, abandonment of, dur- 
ing good behaviour, in Pennsylvania, 
203, 283; election of judges, 260, 436 

King, Rufus, 67 

King vs. Delaware Insurance Company, 

65 
Kirkland, Dr. John T., 47 

Ladd, William, 24, 25 

Lancaster vs. Dolan, 93 

Lansdowne, Marquis of, 146, 152 

Laussat vs. Lippincott, 75 

Law Association of Philadelphia, 47, 
264 

Law Library Association of Philadel- 
phia, 47 

Leslie, C. R., 158 

Lessee of Livingston vs. Moore, 101 

Letcher vs. Moore, contested election, 
122 

Lewis, William, 38, 49; counsel for 
Fries, 42 

Lieber, Dr. Francis, letters to, 296, 298, 
311, 313, 328, 334, 337, 342, 353, 355, 
359, 365, 366, 371, 373, 377, 378, 382, 
387, 393 



Lincoln, President, election of, 309; in- 
auguration of, 320; call for troops, 
325; response to, 326; emancipation 
proclamation of, 362, 365; assassina- 
tion of, 390 

Littledale, Sir Joseph, 147 

Livingston, Mr. Justice, 63 

Long, Major S. H., 80 

Louis Philippe, attack of Alibeau on, 
157; conspiracies against, 173 

Lyle vs. Richards, 75 

McCall, Peter, 236 

McDuffie, George, moves amendment to 

motion on removal of deposits, 106 
McKean, Governor Thomas, 55, 56 
Magaw, Rev. Dr., 2 
Magniac vs. Thompson, 101 
Marshall, Chief Justice, 35; eulogy on, 

131; opinion on Baptist Association 

case, 217 
Meredith, William M., 216, 237 
Miranda, General Francisco, 46 
Monroe, President, 171 
Munns vs. Dupont, 65 
Murphy vs. Hubert, review of, 257 

Negro Suffrage, Horace Binney's views 

on, 382, 398 
Nicholl, Sir John, 157 

Ogden, David B., 63 

Ohio boundary, 128 

Onderdonk, Rt. Rev. H. U., 242, 280 

Orange, Prince of, 152, 155 

Palmerston, Lord, 145 

Parke, Sir James, 148 

Parsons, Theophilus, defends Clafiin, 28 

Party spirit, Horace Binney's views on, 

371, 376, 447 
Patterson, Sir John, 147, 310, 416 
Pemberton, Thomas, 151 
Pennsylvania Railroad Company of 

1823, 76 



458 



INDEX 



Pennsylvania Railroad, movement to 
construct, 243; city's subscription to 
stock of, 244 

Perry vs. Crammond, 48 

Philadelphia, attempt to pay loan in 
bank-notes, 208; riots in, 235; sub- 
scription to Pennsylvania Railroad 
stock, 244; consolidation, 268; feel- 
ing in regard to secession, 325; mis- 
government in, 427 

Pichon, Baron, 171 

Pickering, John, at Harvard, 25; cor- 
respondence with, 37, 73; provost- 
ship offered to, 135; Judge White's 
eulogy on, 256 

Polk, James K. (President), 105, 106, 
116 

Pozzo di Borgo, Count, 159 

Price, Eli K., 269 

Rawle, William, 38, 39 

Richardson, James, 24, 25 

Richardson, Chief Justice, 24, 25 

Riot Act of 1845, 241 

Rogers, Samuel, 158 

Rome, religion in, 189; carnival in, 

191; Horace Binney's impression of, 

193 
Rosslyn, Lord, 152 
Rush, Dr. Benjamin, 2, 46 
Russell, Earl, 145, 229 

Sargent, Lucius M., 212 
Sergeant, John, 30, 45, 85, 101, 112, 
134, 377; counsel in Girard Will case, 
215, 216, 226; favours Pennsylvania 
Railroad subscription, 246; death, 
264 
Sergeant, Mr. Justice, 253 
Shad well, Vice-Chancellor, 148 
Shippen, Chief Justice, 38 
Shulze, Governor John A., 89 
SiUiman, Professor Benjamin, 44 
Slidell and Mason; arrest of, 344, 345, 
346 



Smith, Mr. Justice (Charles), 55 

Smith, Mr. Justice (Thomas), 38 

Spring, Dr. Marshall, marries Mrs. 
Barnabas Binney, 15; affection for 
his step-children, 23; advice to Hor- 
ace Binney, 28 

St. Peter's Church endowment fund, 
417 

Stearns, Asahel, 25 

Story, Mr. Justice, opinion in Baptist 
Association case, 217; sits in Girard 
Will case, 227 

Stuart, Gilbert, 42; his portrait of 
Horace Binney, 43 

Tariff of 1824, memorial against, 87 
Taylor, President, 232 
Thorwaldsen, Albert Bertel, 183 
Ticknor, George, 80, 176 
Tilghman, Edward, 28, 60, 76, 93 
Tilghman, Chief Justice, 38, 57, 58; 

death, 89; eulogium on, t>i 
Tyler, President, 213, 230 

Union League of Philadelphia, Horace 

Binney's letter to, 370 
United States vs. Pryor, 68 
United States Bank (First), failure to 

secure new charter, 64 
United States Bank (Second), veto of 

charter, 97; removal of deposits, 103; 

Horace Binney's speech on, 107; 

committee reports on 116; change of 

policy, 118 
United States Bank of Pennsylvania, 

207 
United States Bank vs. De Veaux, 62 
United States Bank vs. Donnelly, 117 

Vaux, George, 45 

Wallace, Horace Binney, 266 
Wallace, John B., 30, 31, 45, 54; let- 
ters to, 56, 115, 125 
Warren, Dr. John C, 25 



459 



INDEX 



Washington, Mr. Justice, 31; visits to, 
62; death, 94; sketch of, 282 

Washington, President, 15; Farewell 
Address of, 285-291; reading the 
Address, 299 

Webster, Daniel, ovation to, in Balti- 
more, 120; Horace Binney's opinion 
of, 124, 263; counsel in Girard Will 
case, 215, 226 

Wellington, Duke of, 146, 152 



White, Hon. Daniel A., at Harvard, 
24-26; letters to, 33, 35, 113, 211, 233, 
256, 263, 288, 290, 316; death, 319 

Wirt, Attorney-General, 93; death, 115 

Wise, Henry A., 229 

Wolf, Governor George, 95 

Woodbridge, Mr., school-master at Med- 
ford, 18 

Yeates, Mr. Justice, 38 



627 



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